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THE RIGHT OF INDIVIDUAL
APPLICATION UNDER THE EUROPEAN
CONVENTION ON HUMAN RIGHTS
ASLI DEMİRBAĞ
LLM
UNIVERSITY OF KENT
2012
3
BURSİYERE AİT BİLGİLER
Ad Soyad ASLI DEMİRBAG
Referans Numarası Soumlzleşme Numarası JM -
Sektoumlr (Kamu Uumlniversite veya Oumlzel Sektoumlr) KAMU
Bursiyerin Bağlı Olduğu Kurum Birim İli TUumlRK EXIMBANKHUKUK ve MEVZUAT
DAİRE BAŞKANLIĞIİSTANBUL
Bursiyerin Bağlı Olduğu Kurumdaki Uumlnvanı UZMAN
Oumlğrenim Goumlrduumlğuuml Dil İNGİLİZCE
Ccedilalışma Alanı (İlgili Muumlktesebat Başlığı
Oumlrn Ccedilevre Ulaştırma vb) REKABET POLİTİKASI
E-posta (Birden fazla belirtilebilir) aslidemirbagyahoocom
ademirbageximbankgovtr
JEAN MONNET BURS PROGRAMI KAPSAMINDA OumlĞRENİM GOumlRUumlLEN
PROGRAMA AİT BİLGİLER
Oumlğrenim Goumlruumllen Akademik Yıl
(Oumlrn 2009 ndash 2010 2010 ndash 2011) 2011-2012
Uumlniversite UNIVERSITY OF KENT
Uumllke Şehir CANTERBURYİNGİLTERE
Fakuumllte Boumlluumlm HUKUK FAKUumlLTESİ
Programın Adı (Oumlrn LLM in European Law
Msc in Economics vb) LLM in EUROPEAN LAW
Programın Tuumlruuml (MA MSc kısa suumlreli
araştırma programı vs) LLM
Programın Başlangıccedil Bitiş Tarihleri 16 EYLUumlL 2011-12 EYLUumlL 2012
Oumlğrenim Suumlresi (ay) 12
Tez Araştırma Ccedilalışmasının Başlığı
AVRUPA İNSAN HAKLARI
ANTLAŞMASI KAPSAMINDA
BİREYSEL BAŞVURU HAKKI
Danışmana Baş
Araştırmacıya Ait
Bilgiler
Ad Soyad DR FRANCESCO MESSINEO
E-posta fmessineokentacuk
4
INFORMATION ABOUT THE SCHOLAR
Name Surname ASLI DEMIRBAG
Reference No Contract No JM -
Sector (Public University or Private
Sector) PUBLIC
Scholarrsquos Affiliation Department City TURK EXIMBANKLAW
DEPARTMENTİSTANBUL
Scholarrsquos Title SPECIALIST
Language of Instruction ENGLISH
Field of Study (Related Acquis Chapter
Eg Environment Transportation etc) COMPETITION POLICY
E-mail (More than one e-mail might be
specified)
aslidemirbagyahoocom
ademirbageximbankgovtr
INFORMATION ABOUT THE EDUCATION PROGRAMME
Academic Year 2011-2012
University UNIVERSITY OF KENT
Country City CANTERBURYUNITED KINGDOM
Faculty Department LAW SCHOOL
Name of the Programme
(eg LLM in European Law Msc in
Economics vb)
LLM in EUROPEAN LAW
Type of the Programme (MA MSc) LLM
Start End Dates of the Programme 16 SEPTEMBER 2011 ndash
12 SEPTEMBER 2012
Duration of Education (months) 12
Title of the Dissertation Research Study
THE RIGHT OF INDIVIDUAL
APPLICATION UNDER THE
EUROPEAN CONVENTION ON
HUMAN RIGHTS
Information
about the
Advisor
Name Surname DRFRANCESCO MESSINEO
E-mail fmessineokentacuk
5
6
7
Table of Contents THE RIGHT OF INDIVIDUAL APPLICATION UNDER THE EUROPEAN
CONVENTION ON HUMAN RIGHTS 10
I INTRODUCTION 10
II The lsquoOldrsquo System of Enforcement 12
III Right to Individual Application A Victim or a Criminal 15
IIII Subject of This Study 17
II THE RIGHT TO INDIVIDUAL APPLICATION 18
III Scope of the Right 18
IIII Protocol 14 and New Admissibility Criteria 19
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN COURT
OF HUMAN RIGHTS 21
IIII Organization of the Court 21
IIIII Procedures before the Court Concerning Individual Applications 22
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS 25
IVI Preliminary Remarks 25
IVII Who May Petition the Court 27
IVIII Exhaustion of Domestic Remedies 35
IVIV Six Month Time Limit 39
IVV Was the alleged violation committed by a contracting party 40
IVVI Competence Ratione Loci 42
IVVII Competence Ratione Temporis 44
IVVIII No Significant Disadvantage 45
IVIX Is An Application Manifestly Ill Founded 48
IVX Competent Ratione Materia 50
IVXI Abuse Of The Right Of Application 51
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE 52
VI Preliminary Remarks 52
VIIFriendly Settlement 54
VI CONCLUSION 58
ABSTRACT 60
BIBLIOGRAPHY 61
8
OumlZET
Avrupa İnsan Hakları Antlaşması Kapsamında Bireysel Başvuru Hakkı
Avrupa Konseyi tarafından hazırlanarak 3 Eyluumll 1953 tarihinde yuumlruumlrluumlğe giren Avrupa
İnsan Hakları Soumlzleşmesi ve bu soumlzleşmeyi tamamlayan ek protokoller sadece insan
haklarını tanımakla kalmamış aynı zamanda bu hakların etkin bir şekilde guumlvence altına
alınması ve korunması amacıyla bir kontrol mekanizması kurmuştur Soumlz konusu
kontrol mekanizmasının ayırt edici oumlzelliği Avrupa İnsan Hakları Soumlzleşmesirsquone taraf
olan devletlerde yaşayan yurttaşlara Soumlzleşmede guumlvence altına alınan hak ve
oumlzguumlrluumlklerin ihlal edildiği gerekccedilesiyle Avrupa İnsan Hakları Mahkemesirsquone başvuru
hakkını tanımış olmasıdır
Avrupa insan hakları sisteminin temel taşı olan bireysel başvuru hakkı hem akademik
ortamda hem de Avrupa Konseyi nezdinde yaşanan uzun tartışmalar ve değişik
zamanlarda vuku bulan ccedilok sayıda reform ccedilalışması neticesinde şekillenmiş kendine
oumlzguuml nitelikleri bulunan insan haklarını uluslaruumlstuuml duumlzeyde koruma altına alan hakları
ihlal edilen mağdurların uluslararası bir yargı organına ulaşabilme ve zararlarını
karşılayabilme olanağını sağlaması accedilısından ccedilok oumlnemli bir şikayet yoludur
Tez ccedilalışmasında ilk olarak kendine oumlzguuml nitelikleri olan bu hakkın iccedileriği kapsamı ve
kullanılması ccedileşitli dava oumlrnekleriyle teorik ve pratik accedilıdan incelenmiş olup
Mahkemenin iş yuumlkuumlnuuml azaltmak amacıyla yuumlruumltuumllen guumlncel reform ccedilalışmalarının soumlz
konusu hakkın kapsamı ve sınırlarına olan etkilerine ilişkin tartışmalara ve yorumlara
yer verilerek soumlz konusu hakkın geleceği hakkında değerlendirmeyle ccedilalışma son
bulmuştur
9
ABSTRACT
The Right of Individual Application under the European Convention on Human
Rights
The European system of human rights protection which was established under the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 ( ECHR ) is considered to be the most successful and developed human rights
enforcement mechanism throughout the world The ECHR was adopted by the Council
of Europe which was founded by ten countries in 1949 for the purpose of achieving
greater unity between its member states through the protection of fundamental freedoms
and human rights in the aftermath of the Second World War
The right of individual petition enabling individual victims to bring complaints of a
violation of rights set forth in the ECHR to the European Court of Human Rights (the
Court) against the member states and to seek redress for their grievances is rightly seen
as the cornerstone of the European Human Rights Protection system As a result of a
long process occurring over many years this right has evolved into a real lsquoright of
actionrsquo characterized by salient unique features which is worth examining
To this end the study starts with a short introduction to the historical background of the
right to individual application and the institutional evolution of the European human
rights control system and then puts into a broader context connecting the topic to
current complaints system centered on the practice and procedure of the Court on the
admissibility of applications from individuals and the resolution of the dispute
Following section focuses on the current debate on reforming the ECHR to provide a
solution to the Courtrsquos excessive case load in the wake of the ratification of lsquoProtocol
No14rsquo and the lsquoBrighton Declaration 2012rsquo at which the parties agreed on a roadmap
for the future evolution of the European human rights system This section contains
some considerations that the adaptation of reformation protocols is likely to have on the
right of individual application The keynote of this section is whether the essence of the
right of individuals would be undermined and limitedcurtailed by those proposed
protocols The study concludes with final remarks
10
THE RIGHT OF INDIVIDUAL APPLICATION UNDER
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
I INTRODUCTION
The European human rights protection system is considered to be the most extensive
and effective regime designed for the protection and promotion of human rights
throughout the world First of all it can be distinguished from the other international
instruments by its far more developed control system established under the European
Convention for the Protection of Human Rights and Fundamental Freedoms1 (the
Convention) In particular the individual right of application to the European Court of
Human Rights is seen as the cornerstone of the European Human Rights Regime
The Convention was adopted by the Council of Europe (the Council) which was
founded by ten countries2 in 1949 for the purpose of achieving greater unity between
member states through the protection of fundamental freedoms and human rights in the
aftermath of the Second World War3 Adaptation of a human rights convention for
Europe was declared as a primarily task just after the first session of the Council in
August 19494 After the negotiations the Convention the first regional human rights
protection instrument containing definitions mutual obligations with an enforcement
and control mechanism was signed in November 1950
Since its entry into force in 1953 the number of contracting parties to the Convention
has increased so rapidly specially after the fall of communism in Central and Eastern
Europe Until now 47 member states ratified the Convention which means almost 800
million people are safeguarded by the Convention 5
1 Council of Europe European Convention for the Protection of Human Rights and Fundamental
Freedoms as amended by Protocols Nos 11 and 14 4 November 1950 ETS 5 available at
httpwwwrefworldorgdocid3ae6b3b04html [accessed 12 September 2013] 2 Those 10 countries are Belgium Denmark France Ireland ItalyLuxembourgthe
NetherlandsNorwaySweden and the United Kingdom 3 Council of Europe Statue of the Council of Europe 3 August 1949 CETS 1 available at
httpconventionscoeintTreatyCommunQueVoulezVousaspNT=001ampCM=1ampCL=ENG [accessed
12 September 2013] 4 LMikaelsen European Protection on Human Rights The Practice and Procedure of the European
Commission of Human Rights on the Admissibility of Applications from Individuals and States ( Sijthhoff
amp Noordhoff Int Publishers BV1980 ) p11 5 DHarris MOrsquoBoyle EBates CBuckley Law of the European Convention on Human Rights ( 2
nd
edn Oxford University Press2009) p2
11
The contracting parties have an obligation to secure and ensure the rights and freedoms
set out in the Convention to everyone within their jurisdiction pursuant to Article 1 of
the Convention The Convention mainly includes civil and political rights as the
economic and social rights are protected by another instrument of the Council namely
the European Social Charter
The Convention does not only contain a list of substantive rights but it also introduces a
remarkable enforcement system in order to lsquobring lifersquo to those rights within Therefore
the Convention is far more than just a list of some essential rights its protection system
enabling individuals as well as states to make complaints to the European Court of
Human Rights (the Court) against contracting states
Two instruments were created in order to strengthen of the international protection of
human rights the right to individual application enabling those individual victims who
claim that their fundamental human rights and freedoms set forth in the Convention
have been violated to submit a complaint to the Court6 and interstate applications which
are brought by one of the contracting states against the other contracting state alleging a
violation of the Convention rights7 The essence of such an enforcement system was
stated in the Explanatory Report to Protocol No 9 as ldquothe situation whereby the
individual is granted rights but not given the possibility to exploit fully the control
machinery provided for enforcing them could today be regarded as inconsistent with
the spirit of the Convention not to mention compatibility with domestic legal
procedures in state partiesrdquo 8 This complaint mechanism based on an individualized
perspective where every victim of human rights violations of the Convention may seek
a judgment on the dispute and where appropriate obtain some form of individual redress
from the European Court
6 Article 34 of the Convention concerning individual applications reads as followsrdquoThe Court may
receive applications from any person non-governmental organisation or group of individuals claiming to
be the victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in any way the
effective exercise of this right 7 Article 35 of the Convention concerning interstate cases reads as follows ldquoAny High Contracting Party
may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto
by another High Contracting Partyrdquo 8
Council of Europe Explanatory Report to Protocol No 9 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms 6 November 1990 ETS 140 at para 12 available at
httpconventionscoeintTreatyENReportsHtml140htm [accessed 2 October 2013]
12
However in the first 50 years of the Convention between November 1953 until 1998
these two remarkable features the right to individual application and the judicial
jurisdiction of the Court ie to hear and try cases already reported upon the European
Commission of Human Rights were optional not compulsory for the contracting states9
Hence in the early stages of the Convention system individuals had no locus standi in
the Court and the contracting states were free to decide whether or not to accept (I) the
right of individual application and (II) the jurisdiction of the Court 10
Over time the right of application turned out to be a lsquoreal right of actionrdquo11
but the
evolution has never been easy since the role of this right under the European system has
been debated for so long both within the Court itself and among the scholars
Ten years later after the entry into force of Protocol 1112
on 1 November 1998 a need
has arisen to promote a new reform of the system so that the Court can cope with the
excessive case load stemming from the rapid enlargement of the Council of Europe and
the general rise in the number of applications to the Court After a long preparatory
period Council of Europe agreed on a final proposal namely Protocol No 1413
which
aroused a latent conflict between two contradictory views concerning the main purpose
of the individual complaints mechanism set by the Convention
Following section summarised the previous enforcement system which was abolished
by Protocol No11 in 1998
II The lsquoOldrsquo System of Enforcement
In fact the enforcement system operated through part time monitoring institutions
namely the European Commission of Human Rights (the Commission) the Court and
9 MJanis RKay ABradley European Human Rights Law Text and Materials (3
rd edn Oxford
University Press 2008 ) p19 10
P Sardaro rsquoIndividual Complaintsrsquo in PLemmens amp WVandenhole (eds) Protocol No14 and the
Reform of the European Court of Human Rights ( Oxford Hart Publishing 2005) pp45-67 at p47 11
Ibid 12
Council of Europe Protocol 11 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Restructuring the Control Machinery Established Thereby 11 May 1994 ETS
155 available at httpwwwrefworldorgdocid42ef8c812html [accessed 3 October 2013] 13
Council of Europe Protocol 14 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Amending the Control System of the Convention 13 May 2004 CETS
194 available at httpwwwrefworldorgdocid42ef8d0b4html [accessed 3 October 2013]
13
the Committee of Ministers (the Committee) until the creation of a single full time
court in November 1998 under Protocol 11 of the Convention
According to this initial supervisory system the Commission was entitled to receive
complaints both from the contracting states and the individuals against the other
contracting states about violations of the human rights protected by the Convention and
the relevant Protocols14
The Commission was responsible for the initial proceedings of
an application after it is received and registered such as deciding on the admissibility of
complaints as well as giving an opinion on the merits trying to reach a friendly
settlement of disputes between the parties and finding the facts The Commission was to
conclude the stage of merits with a report concerning the facts and an opinion as to
whether the facts found caused a breach of the Convention The operations of the
Commission at this stage could not be described as lsquocourt-functionsrsquo rather it could be
considered as an inquiry work outcome of which was not binding upon the relevant
contracting state15
The final decisions on the cases which were not resolved through friendly settlement
were reserved to the Court or the Committee of Ministers If the contracting state had
accepted the Courtrsquos jurisdiction the case could be referred to the Court within 3
months following the transmission of the Commissionrsquos report to the Committee As
indicated before the recognition of the Courtrsquos jurisdiction was not obligatory lsquobut
subject to a declaration by the contracting statersquo16
If neither party (the Commission or
the respondent state or the applicant) referred the case to the Court then the Committee
decided whether the violation occurred or not If there was a violation the Committee
indicated the measures which should be taken by the state including those of
compensation of the victim for the violation or changing the legal system that had
caused the violation at issue The disadvantages of this system were explained in details
by Rowe and Schlette as follows
The most obvious weakness of the old system was its extraordinary complexity three
organs worked together in a protracted multi-phase procedure There was considerable
overlap between the competencies of the various organs which meant that work was
14
RCAWhite C Ovey The European Convention on Human Rights (5 th
ed Oxford Uni Press 2010)
p10 15
L Mikaelsen supra n4p 15-16 16
İbid p16
14
often duplicated Nor was the interplay of the Commission Court and Committee the
only difficult matter the structure of the review system and the mixed judicial and
political character of the decision-making organs made the internal decision-making
process a complicated affair In sum there view system was ponderous expensive and
difficult for the complainant to understand There was a considerable risk that the
various organs would reach different decisions in substantially similar cases ndash as
happened on several occasions in decisions of the Commission and Court
A further weakness was the absence of any purely judicial mechanism for the review of
first instance Convention decisions [ie decisions of the Commission or the Committee
of Ministers]17
According to Greer recognition of the Courtrsquos judicial jurisdiction was originally
optional but politically non-optional18
Indeed by the 1990rsquos all of the member states
had already voluntarily accepted both the jurisdiction of the Court and the right of
individual application19
Eventually after the entering into force of Protocol 11 in
November 1998 the Commission and the Court was abolished to establish a new single
permanent three-tier court system with a compulsory jurisdiction-without any special
declaration by the contracting states- over all individual petitions to the Court20
that is
to say both the jurisdiction of the Court and the right to individual application has
become mandatory In following years after the adaptation of Protocol 14 a single
judge formation was created for admissibility decisions to increase the work speed of
the Court
Evolution of the Court in context of its structure and functions through these two
significant protocols to the Convention and the actual organization scheme of the Court
and procedures is examined in the following sections of this study
17
NRowe V Schlette lsquoThe Protection of Human Rights in Europe after the Eleventh Protocol to the
ECHRrsquo 23 European Law Review 3 (1998) p3 at p15 18
SGreer lsquoWhat is Wrong with the European Convention Human Rightsrsquo 30(3) Human Rights
Quarterly (2008) p680 at pp682-683 19
Janis Kay Bradley supra n9 p21 20
L Caflish lsquoThe Reform of the European Court of Human Rights Protocol 14 and Beyondrsquo 6(2)
Human Rights Law Review (2006) p 403 at p 403
15
III Right to Individual Application A Victim or a Criminal
Just a short glimpse back to first emerging and then development process of the right of
individual application under the Convention system can easily show that it has been
always in the centre of the fiery debates on the lsquofuturersquo of the Convention machinery
since to date and seem like will be in the following days
In the very early days during preparatory negotiations of the Convention when the
inclusion of the right of individual application was suggested by the Legal Committee
of the Council it was objected by some of the contracting parties arguing that lsquogreat
amount of applications made by individuals at the thought of a violation of his rights
under the convention would obstruct proper and efficient operation of the Court 21
Furthermore judicial enforcement of human rights was regarded unnecessary since
there were existed effective legislative and executive branches of government
safeguarding fundamental freedoms22
For example an announcement of a
representative of the Netherlands in 1959 about recognition of individual petition right
follows as ldquo hellip it was thought that the procedure for individual petition was
cumbersome and costly and finally it was pointed out that the right of individual
petition would have far reaching repercussions upon our legal systemrdquo23
On the other hand supporters of the idea of an individual right of application to the
Strasbourg institutions pointed out the essence of such a right for ldquoestablishment of the
dignity of the individual human spirit and to prevent injusticerdquo24
At the end of the negotiations when the Convention was signed in 1950 both the right
to individual application and the jurisdiction of the Court were optional as indicated
previously
Later developments in the European human rights system over the years have affected
the right of individual application in particular protocol 11 which has amended the
21
Council of Europe Collected Edition of the Travaux Preparatories of the European Convention on
Human Rights ( BrillampNijhoff 1975 ) paras 228-34 ( hereinafter Travaux Preparatories ) (as cited in
JanisKayBradley supra n9p15 ) 22
JFrowein lsquoEuropean Integration Through Fundamental Rightsrsquo18 Michigan Journalof Law Reform
(1984) p5 at p7 ( as cited in JanisKayBradleysupra n9 p19 ) 23
Second Chamber of the States General Preliminary Report of the Budget Commitee for Foreign
Affairs Session 1959 Docno 5359 ( as cited in Janis Kay Bradley supra n9 p20) 24
Janis Kay Bradley supra n 9 p17
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
3
BURSİYERE AİT BİLGİLER
Ad Soyad ASLI DEMİRBAG
Referans Numarası Soumlzleşme Numarası JM -
Sektoumlr (Kamu Uumlniversite veya Oumlzel Sektoumlr) KAMU
Bursiyerin Bağlı Olduğu Kurum Birim İli TUumlRK EXIMBANKHUKUK ve MEVZUAT
DAİRE BAŞKANLIĞIİSTANBUL
Bursiyerin Bağlı Olduğu Kurumdaki Uumlnvanı UZMAN
Oumlğrenim Goumlrduumlğuuml Dil İNGİLİZCE
Ccedilalışma Alanı (İlgili Muumlktesebat Başlığı
Oumlrn Ccedilevre Ulaştırma vb) REKABET POLİTİKASI
E-posta (Birden fazla belirtilebilir) aslidemirbagyahoocom
ademirbageximbankgovtr
JEAN MONNET BURS PROGRAMI KAPSAMINDA OumlĞRENİM GOumlRUumlLEN
PROGRAMA AİT BİLGİLER
Oumlğrenim Goumlruumllen Akademik Yıl
(Oumlrn 2009 ndash 2010 2010 ndash 2011) 2011-2012
Uumlniversite UNIVERSITY OF KENT
Uumllke Şehir CANTERBURYİNGİLTERE
Fakuumllte Boumlluumlm HUKUK FAKUumlLTESİ
Programın Adı (Oumlrn LLM in European Law
Msc in Economics vb) LLM in EUROPEAN LAW
Programın Tuumlruuml (MA MSc kısa suumlreli
araştırma programı vs) LLM
Programın Başlangıccedil Bitiş Tarihleri 16 EYLUumlL 2011-12 EYLUumlL 2012
Oumlğrenim Suumlresi (ay) 12
Tez Araştırma Ccedilalışmasının Başlığı
AVRUPA İNSAN HAKLARI
ANTLAŞMASI KAPSAMINDA
BİREYSEL BAŞVURU HAKKI
Danışmana Baş
Araştırmacıya Ait
Bilgiler
Ad Soyad DR FRANCESCO MESSINEO
E-posta fmessineokentacuk
4
INFORMATION ABOUT THE SCHOLAR
Name Surname ASLI DEMIRBAG
Reference No Contract No JM -
Sector (Public University or Private
Sector) PUBLIC
Scholarrsquos Affiliation Department City TURK EXIMBANKLAW
DEPARTMENTİSTANBUL
Scholarrsquos Title SPECIALIST
Language of Instruction ENGLISH
Field of Study (Related Acquis Chapter
Eg Environment Transportation etc) COMPETITION POLICY
E-mail (More than one e-mail might be
specified)
aslidemirbagyahoocom
ademirbageximbankgovtr
INFORMATION ABOUT THE EDUCATION PROGRAMME
Academic Year 2011-2012
University UNIVERSITY OF KENT
Country City CANTERBURYUNITED KINGDOM
Faculty Department LAW SCHOOL
Name of the Programme
(eg LLM in European Law Msc in
Economics vb)
LLM in EUROPEAN LAW
Type of the Programme (MA MSc) LLM
Start End Dates of the Programme 16 SEPTEMBER 2011 ndash
12 SEPTEMBER 2012
Duration of Education (months) 12
Title of the Dissertation Research Study
THE RIGHT OF INDIVIDUAL
APPLICATION UNDER THE
EUROPEAN CONVENTION ON
HUMAN RIGHTS
Information
about the
Advisor
Name Surname DRFRANCESCO MESSINEO
E-mail fmessineokentacuk
5
6
7
Table of Contents THE RIGHT OF INDIVIDUAL APPLICATION UNDER THE EUROPEAN
CONVENTION ON HUMAN RIGHTS 10
I INTRODUCTION 10
II The lsquoOldrsquo System of Enforcement 12
III Right to Individual Application A Victim or a Criminal 15
IIII Subject of This Study 17
II THE RIGHT TO INDIVIDUAL APPLICATION 18
III Scope of the Right 18
IIII Protocol 14 and New Admissibility Criteria 19
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN COURT
OF HUMAN RIGHTS 21
IIII Organization of the Court 21
IIIII Procedures before the Court Concerning Individual Applications 22
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS 25
IVI Preliminary Remarks 25
IVII Who May Petition the Court 27
IVIII Exhaustion of Domestic Remedies 35
IVIV Six Month Time Limit 39
IVV Was the alleged violation committed by a contracting party 40
IVVI Competence Ratione Loci 42
IVVII Competence Ratione Temporis 44
IVVIII No Significant Disadvantage 45
IVIX Is An Application Manifestly Ill Founded 48
IVX Competent Ratione Materia 50
IVXI Abuse Of The Right Of Application 51
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE 52
VI Preliminary Remarks 52
VIIFriendly Settlement 54
VI CONCLUSION 58
ABSTRACT 60
BIBLIOGRAPHY 61
8
OumlZET
Avrupa İnsan Hakları Antlaşması Kapsamında Bireysel Başvuru Hakkı
Avrupa Konseyi tarafından hazırlanarak 3 Eyluumll 1953 tarihinde yuumlruumlrluumlğe giren Avrupa
İnsan Hakları Soumlzleşmesi ve bu soumlzleşmeyi tamamlayan ek protokoller sadece insan
haklarını tanımakla kalmamış aynı zamanda bu hakların etkin bir şekilde guumlvence altına
alınması ve korunması amacıyla bir kontrol mekanizması kurmuştur Soumlz konusu
kontrol mekanizmasının ayırt edici oumlzelliği Avrupa İnsan Hakları Soumlzleşmesirsquone taraf
olan devletlerde yaşayan yurttaşlara Soumlzleşmede guumlvence altına alınan hak ve
oumlzguumlrluumlklerin ihlal edildiği gerekccedilesiyle Avrupa İnsan Hakları Mahkemesirsquone başvuru
hakkını tanımış olmasıdır
Avrupa insan hakları sisteminin temel taşı olan bireysel başvuru hakkı hem akademik
ortamda hem de Avrupa Konseyi nezdinde yaşanan uzun tartışmalar ve değişik
zamanlarda vuku bulan ccedilok sayıda reform ccedilalışması neticesinde şekillenmiş kendine
oumlzguuml nitelikleri bulunan insan haklarını uluslaruumlstuuml duumlzeyde koruma altına alan hakları
ihlal edilen mağdurların uluslararası bir yargı organına ulaşabilme ve zararlarını
karşılayabilme olanağını sağlaması accedilısından ccedilok oumlnemli bir şikayet yoludur
Tez ccedilalışmasında ilk olarak kendine oumlzguuml nitelikleri olan bu hakkın iccedileriği kapsamı ve
kullanılması ccedileşitli dava oumlrnekleriyle teorik ve pratik accedilıdan incelenmiş olup
Mahkemenin iş yuumlkuumlnuuml azaltmak amacıyla yuumlruumltuumllen guumlncel reform ccedilalışmalarının soumlz
konusu hakkın kapsamı ve sınırlarına olan etkilerine ilişkin tartışmalara ve yorumlara
yer verilerek soumlz konusu hakkın geleceği hakkında değerlendirmeyle ccedilalışma son
bulmuştur
9
ABSTRACT
The Right of Individual Application under the European Convention on Human
Rights
The European system of human rights protection which was established under the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 ( ECHR ) is considered to be the most successful and developed human rights
enforcement mechanism throughout the world The ECHR was adopted by the Council
of Europe which was founded by ten countries in 1949 for the purpose of achieving
greater unity between its member states through the protection of fundamental freedoms
and human rights in the aftermath of the Second World War
The right of individual petition enabling individual victims to bring complaints of a
violation of rights set forth in the ECHR to the European Court of Human Rights (the
Court) against the member states and to seek redress for their grievances is rightly seen
as the cornerstone of the European Human Rights Protection system As a result of a
long process occurring over many years this right has evolved into a real lsquoright of
actionrsquo characterized by salient unique features which is worth examining
To this end the study starts with a short introduction to the historical background of the
right to individual application and the institutional evolution of the European human
rights control system and then puts into a broader context connecting the topic to
current complaints system centered on the practice and procedure of the Court on the
admissibility of applications from individuals and the resolution of the dispute
Following section focuses on the current debate on reforming the ECHR to provide a
solution to the Courtrsquos excessive case load in the wake of the ratification of lsquoProtocol
No14rsquo and the lsquoBrighton Declaration 2012rsquo at which the parties agreed on a roadmap
for the future evolution of the European human rights system This section contains
some considerations that the adaptation of reformation protocols is likely to have on the
right of individual application The keynote of this section is whether the essence of the
right of individuals would be undermined and limitedcurtailed by those proposed
protocols The study concludes with final remarks
10
THE RIGHT OF INDIVIDUAL APPLICATION UNDER
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
I INTRODUCTION
The European human rights protection system is considered to be the most extensive
and effective regime designed for the protection and promotion of human rights
throughout the world First of all it can be distinguished from the other international
instruments by its far more developed control system established under the European
Convention for the Protection of Human Rights and Fundamental Freedoms1 (the
Convention) In particular the individual right of application to the European Court of
Human Rights is seen as the cornerstone of the European Human Rights Regime
The Convention was adopted by the Council of Europe (the Council) which was
founded by ten countries2 in 1949 for the purpose of achieving greater unity between
member states through the protection of fundamental freedoms and human rights in the
aftermath of the Second World War3 Adaptation of a human rights convention for
Europe was declared as a primarily task just after the first session of the Council in
August 19494 After the negotiations the Convention the first regional human rights
protection instrument containing definitions mutual obligations with an enforcement
and control mechanism was signed in November 1950
Since its entry into force in 1953 the number of contracting parties to the Convention
has increased so rapidly specially after the fall of communism in Central and Eastern
Europe Until now 47 member states ratified the Convention which means almost 800
million people are safeguarded by the Convention 5
1 Council of Europe European Convention for the Protection of Human Rights and Fundamental
Freedoms as amended by Protocols Nos 11 and 14 4 November 1950 ETS 5 available at
httpwwwrefworldorgdocid3ae6b3b04html [accessed 12 September 2013] 2 Those 10 countries are Belgium Denmark France Ireland ItalyLuxembourgthe
NetherlandsNorwaySweden and the United Kingdom 3 Council of Europe Statue of the Council of Europe 3 August 1949 CETS 1 available at
httpconventionscoeintTreatyCommunQueVoulezVousaspNT=001ampCM=1ampCL=ENG [accessed
12 September 2013] 4 LMikaelsen European Protection on Human Rights The Practice and Procedure of the European
Commission of Human Rights on the Admissibility of Applications from Individuals and States ( Sijthhoff
amp Noordhoff Int Publishers BV1980 ) p11 5 DHarris MOrsquoBoyle EBates CBuckley Law of the European Convention on Human Rights ( 2
nd
edn Oxford University Press2009) p2
11
The contracting parties have an obligation to secure and ensure the rights and freedoms
set out in the Convention to everyone within their jurisdiction pursuant to Article 1 of
the Convention The Convention mainly includes civil and political rights as the
economic and social rights are protected by another instrument of the Council namely
the European Social Charter
The Convention does not only contain a list of substantive rights but it also introduces a
remarkable enforcement system in order to lsquobring lifersquo to those rights within Therefore
the Convention is far more than just a list of some essential rights its protection system
enabling individuals as well as states to make complaints to the European Court of
Human Rights (the Court) against contracting states
Two instruments were created in order to strengthen of the international protection of
human rights the right to individual application enabling those individual victims who
claim that their fundamental human rights and freedoms set forth in the Convention
have been violated to submit a complaint to the Court6 and interstate applications which
are brought by one of the contracting states against the other contracting state alleging a
violation of the Convention rights7 The essence of such an enforcement system was
stated in the Explanatory Report to Protocol No 9 as ldquothe situation whereby the
individual is granted rights but not given the possibility to exploit fully the control
machinery provided for enforcing them could today be regarded as inconsistent with
the spirit of the Convention not to mention compatibility with domestic legal
procedures in state partiesrdquo 8 This complaint mechanism based on an individualized
perspective where every victim of human rights violations of the Convention may seek
a judgment on the dispute and where appropriate obtain some form of individual redress
from the European Court
6 Article 34 of the Convention concerning individual applications reads as followsrdquoThe Court may
receive applications from any person non-governmental organisation or group of individuals claiming to
be the victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in any way the
effective exercise of this right 7 Article 35 of the Convention concerning interstate cases reads as follows ldquoAny High Contracting Party
may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto
by another High Contracting Partyrdquo 8
Council of Europe Explanatory Report to Protocol No 9 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms 6 November 1990 ETS 140 at para 12 available at
httpconventionscoeintTreatyENReportsHtml140htm [accessed 2 October 2013]
12
However in the first 50 years of the Convention between November 1953 until 1998
these two remarkable features the right to individual application and the judicial
jurisdiction of the Court ie to hear and try cases already reported upon the European
Commission of Human Rights were optional not compulsory for the contracting states9
Hence in the early stages of the Convention system individuals had no locus standi in
the Court and the contracting states were free to decide whether or not to accept (I) the
right of individual application and (II) the jurisdiction of the Court 10
Over time the right of application turned out to be a lsquoreal right of actionrdquo11
but the
evolution has never been easy since the role of this right under the European system has
been debated for so long both within the Court itself and among the scholars
Ten years later after the entry into force of Protocol 1112
on 1 November 1998 a need
has arisen to promote a new reform of the system so that the Court can cope with the
excessive case load stemming from the rapid enlargement of the Council of Europe and
the general rise in the number of applications to the Court After a long preparatory
period Council of Europe agreed on a final proposal namely Protocol No 1413
which
aroused a latent conflict between two contradictory views concerning the main purpose
of the individual complaints mechanism set by the Convention
Following section summarised the previous enforcement system which was abolished
by Protocol No11 in 1998
II The lsquoOldrsquo System of Enforcement
In fact the enforcement system operated through part time monitoring institutions
namely the European Commission of Human Rights (the Commission) the Court and
9 MJanis RKay ABradley European Human Rights Law Text and Materials (3
rd edn Oxford
University Press 2008 ) p19 10
P Sardaro rsquoIndividual Complaintsrsquo in PLemmens amp WVandenhole (eds) Protocol No14 and the
Reform of the European Court of Human Rights ( Oxford Hart Publishing 2005) pp45-67 at p47 11
Ibid 12
Council of Europe Protocol 11 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Restructuring the Control Machinery Established Thereby 11 May 1994 ETS
155 available at httpwwwrefworldorgdocid42ef8c812html [accessed 3 October 2013] 13
Council of Europe Protocol 14 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Amending the Control System of the Convention 13 May 2004 CETS
194 available at httpwwwrefworldorgdocid42ef8d0b4html [accessed 3 October 2013]
13
the Committee of Ministers (the Committee) until the creation of a single full time
court in November 1998 under Protocol 11 of the Convention
According to this initial supervisory system the Commission was entitled to receive
complaints both from the contracting states and the individuals against the other
contracting states about violations of the human rights protected by the Convention and
the relevant Protocols14
The Commission was responsible for the initial proceedings of
an application after it is received and registered such as deciding on the admissibility of
complaints as well as giving an opinion on the merits trying to reach a friendly
settlement of disputes between the parties and finding the facts The Commission was to
conclude the stage of merits with a report concerning the facts and an opinion as to
whether the facts found caused a breach of the Convention The operations of the
Commission at this stage could not be described as lsquocourt-functionsrsquo rather it could be
considered as an inquiry work outcome of which was not binding upon the relevant
contracting state15
The final decisions on the cases which were not resolved through friendly settlement
were reserved to the Court or the Committee of Ministers If the contracting state had
accepted the Courtrsquos jurisdiction the case could be referred to the Court within 3
months following the transmission of the Commissionrsquos report to the Committee As
indicated before the recognition of the Courtrsquos jurisdiction was not obligatory lsquobut
subject to a declaration by the contracting statersquo16
If neither party (the Commission or
the respondent state or the applicant) referred the case to the Court then the Committee
decided whether the violation occurred or not If there was a violation the Committee
indicated the measures which should be taken by the state including those of
compensation of the victim for the violation or changing the legal system that had
caused the violation at issue The disadvantages of this system were explained in details
by Rowe and Schlette as follows
The most obvious weakness of the old system was its extraordinary complexity three
organs worked together in a protracted multi-phase procedure There was considerable
overlap between the competencies of the various organs which meant that work was
14
RCAWhite C Ovey The European Convention on Human Rights (5 th
ed Oxford Uni Press 2010)
p10 15
L Mikaelsen supra n4p 15-16 16
İbid p16
14
often duplicated Nor was the interplay of the Commission Court and Committee the
only difficult matter the structure of the review system and the mixed judicial and
political character of the decision-making organs made the internal decision-making
process a complicated affair In sum there view system was ponderous expensive and
difficult for the complainant to understand There was a considerable risk that the
various organs would reach different decisions in substantially similar cases ndash as
happened on several occasions in decisions of the Commission and Court
A further weakness was the absence of any purely judicial mechanism for the review of
first instance Convention decisions [ie decisions of the Commission or the Committee
of Ministers]17
According to Greer recognition of the Courtrsquos judicial jurisdiction was originally
optional but politically non-optional18
Indeed by the 1990rsquos all of the member states
had already voluntarily accepted both the jurisdiction of the Court and the right of
individual application19
Eventually after the entering into force of Protocol 11 in
November 1998 the Commission and the Court was abolished to establish a new single
permanent three-tier court system with a compulsory jurisdiction-without any special
declaration by the contracting states- over all individual petitions to the Court20
that is
to say both the jurisdiction of the Court and the right to individual application has
become mandatory In following years after the adaptation of Protocol 14 a single
judge formation was created for admissibility decisions to increase the work speed of
the Court
Evolution of the Court in context of its structure and functions through these two
significant protocols to the Convention and the actual organization scheme of the Court
and procedures is examined in the following sections of this study
17
NRowe V Schlette lsquoThe Protection of Human Rights in Europe after the Eleventh Protocol to the
ECHRrsquo 23 European Law Review 3 (1998) p3 at p15 18
SGreer lsquoWhat is Wrong with the European Convention Human Rightsrsquo 30(3) Human Rights
Quarterly (2008) p680 at pp682-683 19
Janis Kay Bradley supra n9 p21 20
L Caflish lsquoThe Reform of the European Court of Human Rights Protocol 14 and Beyondrsquo 6(2)
Human Rights Law Review (2006) p 403 at p 403
15
III Right to Individual Application A Victim or a Criminal
Just a short glimpse back to first emerging and then development process of the right of
individual application under the Convention system can easily show that it has been
always in the centre of the fiery debates on the lsquofuturersquo of the Convention machinery
since to date and seem like will be in the following days
In the very early days during preparatory negotiations of the Convention when the
inclusion of the right of individual application was suggested by the Legal Committee
of the Council it was objected by some of the contracting parties arguing that lsquogreat
amount of applications made by individuals at the thought of a violation of his rights
under the convention would obstruct proper and efficient operation of the Court 21
Furthermore judicial enforcement of human rights was regarded unnecessary since
there were existed effective legislative and executive branches of government
safeguarding fundamental freedoms22
For example an announcement of a
representative of the Netherlands in 1959 about recognition of individual petition right
follows as ldquo hellip it was thought that the procedure for individual petition was
cumbersome and costly and finally it was pointed out that the right of individual
petition would have far reaching repercussions upon our legal systemrdquo23
On the other hand supporters of the idea of an individual right of application to the
Strasbourg institutions pointed out the essence of such a right for ldquoestablishment of the
dignity of the individual human spirit and to prevent injusticerdquo24
At the end of the negotiations when the Convention was signed in 1950 both the right
to individual application and the jurisdiction of the Court were optional as indicated
previously
Later developments in the European human rights system over the years have affected
the right of individual application in particular protocol 11 which has amended the
21
Council of Europe Collected Edition of the Travaux Preparatories of the European Convention on
Human Rights ( BrillampNijhoff 1975 ) paras 228-34 ( hereinafter Travaux Preparatories ) (as cited in
JanisKayBradley supra n9p15 ) 22
JFrowein lsquoEuropean Integration Through Fundamental Rightsrsquo18 Michigan Journalof Law Reform
(1984) p5 at p7 ( as cited in JanisKayBradleysupra n9 p19 ) 23
Second Chamber of the States General Preliminary Report of the Budget Commitee for Foreign
Affairs Session 1959 Docno 5359 ( as cited in Janis Kay Bradley supra n9 p20) 24
Janis Kay Bradley supra n 9 p17
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
4
INFORMATION ABOUT THE SCHOLAR
Name Surname ASLI DEMIRBAG
Reference No Contract No JM -
Sector (Public University or Private
Sector) PUBLIC
Scholarrsquos Affiliation Department City TURK EXIMBANKLAW
DEPARTMENTİSTANBUL
Scholarrsquos Title SPECIALIST
Language of Instruction ENGLISH
Field of Study (Related Acquis Chapter
Eg Environment Transportation etc) COMPETITION POLICY
E-mail (More than one e-mail might be
specified)
aslidemirbagyahoocom
ademirbageximbankgovtr
INFORMATION ABOUT THE EDUCATION PROGRAMME
Academic Year 2011-2012
University UNIVERSITY OF KENT
Country City CANTERBURYUNITED KINGDOM
Faculty Department LAW SCHOOL
Name of the Programme
(eg LLM in European Law Msc in
Economics vb)
LLM in EUROPEAN LAW
Type of the Programme (MA MSc) LLM
Start End Dates of the Programme 16 SEPTEMBER 2011 ndash
12 SEPTEMBER 2012
Duration of Education (months) 12
Title of the Dissertation Research Study
THE RIGHT OF INDIVIDUAL
APPLICATION UNDER THE
EUROPEAN CONVENTION ON
HUMAN RIGHTS
Information
about the
Advisor
Name Surname DRFRANCESCO MESSINEO
E-mail fmessineokentacuk
5
6
7
Table of Contents THE RIGHT OF INDIVIDUAL APPLICATION UNDER THE EUROPEAN
CONVENTION ON HUMAN RIGHTS 10
I INTRODUCTION 10
II The lsquoOldrsquo System of Enforcement 12
III Right to Individual Application A Victim or a Criminal 15
IIII Subject of This Study 17
II THE RIGHT TO INDIVIDUAL APPLICATION 18
III Scope of the Right 18
IIII Protocol 14 and New Admissibility Criteria 19
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN COURT
OF HUMAN RIGHTS 21
IIII Organization of the Court 21
IIIII Procedures before the Court Concerning Individual Applications 22
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS 25
IVI Preliminary Remarks 25
IVII Who May Petition the Court 27
IVIII Exhaustion of Domestic Remedies 35
IVIV Six Month Time Limit 39
IVV Was the alleged violation committed by a contracting party 40
IVVI Competence Ratione Loci 42
IVVII Competence Ratione Temporis 44
IVVIII No Significant Disadvantage 45
IVIX Is An Application Manifestly Ill Founded 48
IVX Competent Ratione Materia 50
IVXI Abuse Of The Right Of Application 51
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE 52
VI Preliminary Remarks 52
VIIFriendly Settlement 54
VI CONCLUSION 58
ABSTRACT 60
BIBLIOGRAPHY 61
8
OumlZET
Avrupa İnsan Hakları Antlaşması Kapsamında Bireysel Başvuru Hakkı
Avrupa Konseyi tarafından hazırlanarak 3 Eyluumll 1953 tarihinde yuumlruumlrluumlğe giren Avrupa
İnsan Hakları Soumlzleşmesi ve bu soumlzleşmeyi tamamlayan ek protokoller sadece insan
haklarını tanımakla kalmamış aynı zamanda bu hakların etkin bir şekilde guumlvence altına
alınması ve korunması amacıyla bir kontrol mekanizması kurmuştur Soumlz konusu
kontrol mekanizmasının ayırt edici oumlzelliği Avrupa İnsan Hakları Soumlzleşmesirsquone taraf
olan devletlerde yaşayan yurttaşlara Soumlzleşmede guumlvence altına alınan hak ve
oumlzguumlrluumlklerin ihlal edildiği gerekccedilesiyle Avrupa İnsan Hakları Mahkemesirsquone başvuru
hakkını tanımış olmasıdır
Avrupa insan hakları sisteminin temel taşı olan bireysel başvuru hakkı hem akademik
ortamda hem de Avrupa Konseyi nezdinde yaşanan uzun tartışmalar ve değişik
zamanlarda vuku bulan ccedilok sayıda reform ccedilalışması neticesinde şekillenmiş kendine
oumlzguuml nitelikleri bulunan insan haklarını uluslaruumlstuuml duumlzeyde koruma altına alan hakları
ihlal edilen mağdurların uluslararası bir yargı organına ulaşabilme ve zararlarını
karşılayabilme olanağını sağlaması accedilısından ccedilok oumlnemli bir şikayet yoludur
Tez ccedilalışmasında ilk olarak kendine oumlzguuml nitelikleri olan bu hakkın iccedileriği kapsamı ve
kullanılması ccedileşitli dava oumlrnekleriyle teorik ve pratik accedilıdan incelenmiş olup
Mahkemenin iş yuumlkuumlnuuml azaltmak amacıyla yuumlruumltuumllen guumlncel reform ccedilalışmalarının soumlz
konusu hakkın kapsamı ve sınırlarına olan etkilerine ilişkin tartışmalara ve yorumlara
yer verilerek soumlz konusu hakkın geleceği hakkında değerlendirmeyle ccedilalışma son
bulmuştur
9
ABSTRACT
The Right of Individual Application under the European Convention on Human
Rights
The European system of human rights protection which was established under the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 ( ECHR ) is considered to be the most successful and developed human rights
enforcement mechanism throughout the world The ECHR was adopted by the Council
of Europe which was founded by ten countries in 1949 for the purpose of achieving
greater unity between its member states through the protection of fundamental freedoms
and human rights in the aftermath of the Second World War
The right of individual petition enabling individual victims to bring complaints of a
violation of rights set forth in the ECHR to the European Court of Human Rights (the
Court) against the member states and to seek redress for their grievances is rightly seen
as the cornerstone of the European Human Rights Protection system As a result of a
long process occurring over many years this right has evolved into a real lsquoright of
actionrsquo characterized by salient unique features which is worth examining
To this end the study starts with a short introduction to the historical background of the
right to individual application and the institutional evolution of the European human
rights control system and then puts into a broader context connecting the topic to
current complaints system centered on the practice and procedure of the Court on the
admissibility of applications from individuals and the resolution of the dispute
Following section focuses on the current debate on reforming the ECHR to provide a
solution to the Courtrsquos excessive case load in the wake of the ratification of lsquoProtocol
No14rsquo and the lsquoBrighton Declaration 2012rsquo at which the parties agreed on a roadmap
for the future evolution of the European human rights system This section contains
some considerations that the adaptation of reformation protocols is likely to have on the
right of individual application The keynote of this section is whether the essence of the
right of individuals would be undermined and limitedcurtailed by those proposed
protocols The study concludes with final remarks
10
THE RIGHT OF INDIVIDUAL APPLICATION UNDER
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
I INTRODUCTION
The European human rights protection system is considered to be the most extensive
and effective regime designed for the protection and promotion of human rights
throughout the world First of all it can be distinguished from the other international
instruments by its far more developed control system established under the European
Convention for the Protection of Human Rights and Fundamental Freedoms1 (the
Convention) In particular the individual right of application to the European Court of
Human Rights is seen as the cornerstone of the European Human Rights Regime
The Convention was adopted by the Council of Europe (the Council) which was
founded by ten countries2 in 1949 for the purpose of achieving greater unity between
member states through the protection of fundamental freedoms and human rights in the
aftermath of the Second World War3 Adaptation of a human rights convention for
Europe was declared as a primarily task just after the first session of the Council in
August 19494 After the negotiations the Convention the first regional human rights
protection instrument containing definitions mutual obligations with an enforcement
and control mechanism was signed in November 1950
Since its entry into force in 1953 the number of contracting parties to the Convention
has increased so rapidly specially after the fall of communism in Central and Eastern
Europe Until now 47 member states ratified the Convention which means almost 800
million people are safeguarded by the Convention 5
1 Council of Europe European Convention for the Protection of Human Rights and Fundamental
Freedoms as amended by Protocols Nos 11 and 14 4 November 1950 ETS 5 available at
httpwwwrefworldorgdocid3ae6b3b04html [accessed 12 September 2013] 2 Those 10 countries are Belgium Denmark France Ireland ItalyLuxembourgthe
NetherlandsNorwaySweden and the United Kingdom 3 Council of Europe Statue of the Council of Europe 3 August 1949 CETS 1 available at
httpconventionscoeintTreatyCommunQueVoulezVousaspNT=001ampCM=1ampCL=ENG [accessed
12 September 2013] 4 LMikaelsen European Protection on Human Rights The Practice and Procedure of the European
Commission of Human Rights on the Admissibility of Applications from Individuals and States ( Sijthhoff
amp Noordhoff Int Publishers BV1980 ) p11 5 DHarris MOrsquoBoyle EBates CBuckley Law of the European Convention on Human Rights ( 2
nd
edn Oxford University Press2009) p2
11
The contracting parties have an obligation to secure and ensure the rights and freedoms
set out in the Convention to everyone within their jurisdiction pursuant to Article 1 of
the Convention The Convention mainly includes civil and political rights as the
economic and social rights are protected by another instrument of the Council namely
the European Social Charter
The Convention does not only contain a list of substantive rights but it also introduces a
remarkable enforcement system in order to lsquobring lifersquo to those rights within Therefore
the Convention is far more than just a list of some essential rights its protection system
enabling individuals as well as states to make complaints to the European Court of
Human Rights (the Court) against contracting states
Two instruments were created in order to strengthen of the international protection of
human rights the right to individual application enabling those individual victims who
claim that their fundamental human rights and freedoms set forth in the Convention
have been violated to submit a complaint to the Court6 and interstate applications which
are brought by one of the contracting states against the other contracting state alleging a
violation of the Convention rights7 The essence of such an enforcement system was
stated in the Explanatory Report to Protocol No 9 as ldquothe situation whereby the
individual is granted rights but not given the possibility to exploit fully the control
machinery provided for enforcing them could today be regarded as inconsistent with
the spirit of the Convention not to mention compatibility with domestic legal
procedures in state partiesrdquo 8 This complaint mechanism based on an individualized
perspective where every victim of human rights violations of the Convention may seek
a judgment on the dispute and where appropriate obtain some form of individual redress
from the European Court
6 Article 34 of the Convention concerning individual applications reads as followsrdquoThe Court may
receive applications from any person non-governmental organisation or group of individuals claiming to
be the victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in any way the
effective exercise of this right 7 Article 35 of the Convention concerning interstate cases reads as follows ldquoAny High Contracting Party
may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto
by another High Contracting Partyrdquo 8
Council of Europe Explanatory Report to Protocol No 9 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms 6 November 1990 ETS 140 at para 12 available at
httpconventionscoeintTreatyENReportsHtml140htm [accessed 2 October 2013]
12
However in the first 50 years of the Convention between November 1953 until 1998
these two remarkable features the right to individual application and the judicial
jurisdiction of the Court ie to hear and try cases already reported upon the European
Commission of Human Rights were optional not compulsory for the contracting states9
Hence in the early stages of the Convention system individuals had no locus standi in
the Court and the contracting states were free to decide whether or not to accept (I) the
right of individual application and (II) the jurisdiction of the Court 10
Over time the right of application turned out to be a lsquoreal right of actionrdquo11
but the
evolution has never been easy since the role of this right under the European system has
been debated for so long both within the Court itself and among the scholars
Ten years later after the entry into force of Protocol 1112
on 1 November 1998 a need
has arisen to promote a new reform of the system so that the Court can cope with the
excessive case load stemming from the rapid enlargement of the Council of Europe and
the general rise in the number of applications to the Court After a long preparatory
period Council of Europe agreed on a final proposal namely Protocol No 1413
which
aroused a latent conflict between two contradictory views concerning the main purpose
of the individual complaints mechanism set by the Convention
Following section summarised the previous enforcement system which was abolished
by Protocol No11 in 1998
II The lsquoOldrsquo System of Enforcement
In fact the enforcement system operated through part time monitoring institutions
namely the European Commission of Human Rights (the Commission) the Court and
9 MJanis RKay ABradley European Human Rights Law Text and Materials (3
rd edn Oxford
University Press 2008 ) p19 10
P Sardaro rsquoIndividual Complaintsrsquo in PLemmens amp WVandenhole (eds) Protocol No14 and the
Reform of the European Court of Human Rights ( Oxford Hart Publishing 2005) pp45-67 at p47 11
Ibid 12
Council of Europe Protocol 11 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Restructuring the Control Machinery Established Thereby 11 May 1994 ETS
155 available at httpwwwrefworldorgdocid42ef8c812html [accessed 3 October 2013] 13
Council of Europe Protocol 14 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Amending the Control System of the Convention 13 May 2004 CETS
194 available at httpwwwrefworldorgdocid42ef8d0b4html [accessed 3 October 2013]
13
the Committee of Ministers (the Committee) until the creation of a single full time
court in November 1998 under Protocol 11 of the Convention
According to this initial supervisory system the Commission was entitled to receive
complaints both from the contracting states and the individuals against the other
contracting states about violations of the human rights protected by the Convention and
the relevant Protocols14
The Commission was responsible for the initial proceedings of
an application after it is received and registered such as deciding on the admissibility of
complaints as well as giving an opinion on the merits trying to reach a friendly
settlement of disputes between the parties and finding the facts The Commission was to
conclude the stage of merits with a report concerning the facts and an opinion as to
whether the facts found caused a breach of the Convention The operations of the
Commission at this stage could not be described as lsquocourt-functionsrsquo rather it could be
considered as an inquiry work outcome of which was not binding upon the relevant
contracting state15
The final decisions on the cases which were not resolved through friendly settlement
were reserved to the Court or the Committee of Ministers If the contracting state had
accepted the Courtrsquos jurisdiction the case could be referred to the Court within 3
months following the transmission of the Commissionrsquos report to the Committee As
indicated before the recognition of the Courtrsquos jurisdiction was not obligatory lsquobut
subject to a declaration by the contracting statersquo16
If neither party (the Commission or
the respondent state or the applicant) referred the case to the Court then the Committee
decided whether the violation occurred or not If there was a violation the Committee
indicated the measures which should be taken by the state including those of
compensation of the victim for the violation or changing the legal system that had
caused the violation at issue The disadvantages of this system were explained in details
by Rowe and Schlette as follows
The most obvious weakness of the old system was its extraordinary complexity three
organs worked together in a protracted multi-phase procedure There was considerable
overlap between the competencies of the various organs which meant that work was
14
RCAWhite C Ovey The European Convention on Human Rights (5 th
ed Oxford Uni Press 2010)
p10 15
L Mikaelsen supra n4p 15-16 16
İbid p16
14
often duplicated Nor was the interplay of the Commission Court and Committee the
only difficult matter the structure of the review system and the mixed judicial and
political character of the decision-making organs made the internal decision-making
process a complicated affair In sum there view system was ponderous expensive and
difficult for the complainant to understand There was a considerable risk that the
various organs would reach different decisions in substantially similar cases ndash as
happened on several occasions in decisions of the Commission and Court
A further weakness was the absence of any purely judicial mechanism for the review of
first instance Convention decisions [ie decisions of the Commission or the Committee
of Ministers]17
According to Greer recognition of the Courtrsquos judicial jurisdiction was originally
optional but politically non-optional18
Indeed by the 1990rsquos all of the member states
had already voluntarily accepted both the jurisdiction of the Court and the right of
individual application19
Eventually after the entering into force of Protocol 11 in
November 1998 the Commission and the Court was abolished to establish a new single
permanent three-tier court system with a compulsory jurisdiction-without any special
declaration by the contracting states- over all individual petitions to the Court20
that is
to say both the jurisdiction of the Court and the right to individual application has
become mandatory In following years after the adaptation of Protocol 14 a single
judge formation was created for admissibility decisions to increase the work speed of
the Court
Evolution of the Court in context of its structure and functions through these two
significant protocols to the Convention and the actual organization scheme of the Court
and procedures is examined in the following sections of this study
17
NRowe V Schlette lsquoThe Protection of Human Rights in Europe after the Eleventh Protocol to the
ECHRrsquo 23 European Law Review 3 (1998) p3 at p15 18
SGreer lsquoWhat is Wrong with the European Convention Human Rightsrsquo 30(3) Human Rights
Quarterly (2008) p680 at pp682-683 19
Janis Kay Bradley supra n9 p21 20
L Caflish lsquoThe Reform of the European Court of Human Rights Protocol 14 and Beyondrsquo 6(2)
Human Rights Law Review (2006) p 403 at p 403
15
III Right to Individual Application A Victim or a Criminal
Just a short glimpse back to first emerging and then development process of the right of
individual application under the Convention system can easily show that it has been
always in the centre of the fiery debates on the lsquofuturersquo of the Convention machinery
since to date and seem like will be in the following days
In the very early days during preparatory negotiations of the Convention when the
inclusion of the right of individual application was suggested by the Legal Committee
of the Council it was objected by some of the contracting parties arguing that lsquogreat
amount of applications made by individuals at the thought of a violation of his rights
under the convention would obstruct proper and efficient operation of the Court 21
Furthermore judicial enforcement of human rights was regarded unnecessary since
there were existed effective legislative and executive branches of government
safeguarding fundamental freedoms22
For example an announcement of a
representative of the Netherlands in 1959 about recognition of individual petition right
follows as ldquo hellip it was thought that the procedure for individual petition was
cumbersome and costly and finally it was pointed out that the right of individual
petition would have far reaching repercussions upon our legal systemrdquo23
On the other hand supporters of the idea of an individual right of application to the
Strasbourg institutions pointed out the essence of such a right for ldquoestablishment of the
dignity of the individual human spirit and to prevent injusticerdquo24
At the end of the negotiations when the Convention was signed in 1950 both the right
to individual application and the jurisdiction of the Court were optional as indicated
previously
Later developments in the European human rights system over the years have affected
the right of individual application in particular protocol 11 which has amended the
21
Council of Europe Collected Edition of the Travaux Preparatories of the European Convention on
Human Rights ( BrillampNijhoff 1975 ) paras 228-34 ( hereinafter Travaux Preparatories ) (as cited in
JanisKayBradley supra n9p15 ) 22
JFrowein lsquoEuropean Integration Through Fundamental Rightsrsquo18 Michigan Journalof Law Reform
(1984) p5 at p7 ( as cited in JanisKayBradleysupra n9 p19 ) 23
Second Chamber of the States General Preliminary Report of the Budget Commitee for Foreign
Affairs Session 1959 Docno 5359 ( as cited in Janis Kay Bradley supra n9 p20) 24
Janis Kay Bradley supra n 9 p17
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
5
6
7
Table of Contents THE RIGHT OF INDIVIDUAL APPLICATION UNDER THE EUROPEAN
CONVENTION ON HUMAN RIGHTS 10
I INTRODUCTION 10
II The lsquoOldrsquo System of Enforcement 12
III Right to Individual Application A Victim or a Criminal 15
IIII Subject of This Study 17
II THE RIGHT TO INDIVIDUAL APPLICATION 18
III Scope of the Right 18
IIII Protocol 14 and New Admissibility Criteria 19
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN COURT
OF HUMAN RIGHTS 21
IIII Organization of the Court 21
IIIII Procedures before the Court Concerning Individual Applications 22
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS 25
IVI Preliminary Remarks 25
IVII Who May Petition the Court 27
IVIII Exhaustion of Domestic Remedies 35
IVIV Six Month Time Limit 39
IVV Was the alleged violation committed by a contracting party 40
IVVI Competence Ratione Loci 42
IVVII Competence Ratione Temporis 44
IVVIII No Significant Disadvantage 45
IVIX Is An Application Manifestly Ill Founded 48
IVX Competent Ratione Materia 50
IVXI Abuse Of The Right Of Application 51
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE 52
VI Preliminary Remarks 52
VIIFriendly Settlement 54
VI CONCLUSION 58
ABSTRACT 60
BIBLIOGRAPHY 61
8
OumlZET
Avrupa İnsan Hakları Antlaşması Kapsamında Bireysel Başvuru Hakkı
Avrupa Konseyi tarafından hazırlanarak 3 Eyluumll 1953 tarihinde yuumlruumlrluumlğe giren Avrupa
İnsan Hakları Soumlzleşmesi ve bu soumlzleşmeyi tamamlayan ek protokoller sadece insan
haklarını tanımakla kalmamış aynı zamanda bu hakların etkin bir şekilde guumlvence altına
alınması ve korunması amacıyla bir kontrol mekanizması kurmuştur Soumlz konusu
kontrol mekanizmasının ayırt edici oumlzelliği Avrupa İnsan Hakları Soumlzleşmesirsquone taraf
olan devletlerde yaşayan yurttaşlara Soumlzleşmede guumlvence altına alınan hak ve
oumlzguumlrluumlklerin ihlal edildiği gerekccedilesiyle Avrupa İnsan Hakları Mahkemesirsquone başvuru
hakkını tanımış olmasıdır
Avrupa insan hakları sisteminin temel taşı olan bireysel başvuru hakkı hem akademik
ortamda hem de Avrupa Konseyi nezdinde yaşanan uzun tartışmalar ve değişik
zamanlarda vuku bulan ccedilok sayıda reform ccedilalışması neticesinde şekillenmiş kendine
oumlzguuml nitelikleri bulunan insan haklarını uluslaruumlstuuml duumlzeyde koruma altına alan hakları
ihlal edilen mağdurların uluslararası bir yargı organına ulaşabilme ve zararlarını
karşılayabilme olanağını sağlaması accedilısından ccedilok oumlnemli bir şikayet yoludur
Tez ccedilalışmasında ilk olarak kendine oumlzguuml nitelikleri olan bu hakkın iccedileriği kapsamı ve
kullanılması ccedileşitli dava oumlrnekleriyle teorik ve pratik accedilıdan incelenmiş olup
Mahkemenin iş yuumlkuumlnuuml azaltmak amacıyla yuumlruumltuumllen guumlncel reform ccedilalışmalarının soumlz
konusu hakkın kapsamı ve sınırlarına olan etkilerine ilişkin tartışmalara ve yorumlara
yer verilerek soumlz konusu hakkın geleceği hakkında değerlendirmeyle ccedilalışma son
bulmuştur
9
ABSTRACT
The Right of Individual Application under the European Convention on Human
Rights
The European system of human rights protection which was established under the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 ( ECHR ) is considered to be the most successful and developed human rights
enforcement mechanism throughout the world The ECHR was adopted by the Council
of Europe which was founded by ten countries in 1949 for the purpose of achieving
greater unity between its member states through the protection of fundamental freedoms
and human rights in the aftermath of the Second World War
The right of individual petition enabling individual victims to bring complaints of a
violation of rights set forth in the ECHR to the European Court of Human Rights (the
Court) against the member states and to seek redress for their grievances is rightly seen
as the cornerstone of the European Human Rights Protection system As a result of a
long process occurring over many years this right has evolved into a real lsquoright of
actionrsquo characterized by salient unique features which is worth examining
To this end the study starts with a short introduction to the historical background of the
right to individual application and the institutional evolution of the European human
rights control system and then puts into a broader context connecting the topic to
current complaints system centered on the practice and procedure of the Court on the
admissibility of applications from individuals and the resolution of the dispute
Following section focuses on the current debate on reforming the ECHR to provide a
solution to the Courtrsquos excessive case load in the wake of the ratification of lsquoProtocol
No14rsquo and the lsquoBrighton Declaration 2012rsquo at which the parties agreed on a roadmap
for the future evolution of the European human rights system This section contains
some considerations that the adaptation of reformation protocols is likely to have on the
right of individual application The keynote of this section is whether the essence of the
right of individuals would be undermined and limitedcurtailed by those proposed
protocols The study concludes with final remarks
10
THE RIGHT OF INDIVIDUAL APPLICATION UNDER
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
I INTRODUCTION
The European human rights protection system is considered to be the most extensive
and effective regime designed for the protection and promotion of human rights
throughout the world First of all it can be distinguished from the other international
instruments by its far more developed control system established under the European
Convention for the Protection of Human Rights and Fundamental Freedoms1 (the
Convention) In particular the individual right of application to the European Court of
Human Rights is seen as the cornerstone of the European Human Rights Regime
The Convention was adopted by the Council of Europe (the Council) which was
founded by ten countries2 in 1949 for the purpose of achieving greater unity between
member states through the protection of fundamental freedoms and human rights in the
aftermath of the Second World War3 Adaptation of a human rights convention for
Europe was declared as a primarily task just after the first session of the Council in
August 19494 After the negotiations the Convention the first regional human rights
protection instrument containing definitions mutual obligations with an enforcement
and control mechanism was signed in November 1950
Since its entry into force in 1953 the number of contracting parties to the Convention
has increased so rapidly specially after the fall of communism in Central and Eastern
Europe Until now 47 member states ratified the Convention which means almost 800
million people are safeguarded by the Convention 5
1 Council of Europe European Convention for the Protection of Human Rights and Fundamental
Freedoms as amended by Protocols Nos 11 and 14 4 November 1950 ETS 5 available at
httpwwwrefworldorgdocid3ae6b3b04html [accessed 12 September 2013] 2 Those 10 countries are Belgium Denmark France Ireland ItalyLuxembourgthe
NetherlandsNorwaySweden and the United Kingdom 3 Council of Europe Statue of the Council of Europe 3 August 1949 CETS 1 available at
httpconventionscoeintTreatyCommunQueVoulezVousaspNT=001ampCM=1ampCL=ENG [accessed
12 September 2013] 4 LMikaelsen European Protection on Human Rights The Practice and Procedure of the European
Commission of Human Rights on the Admissibility of Applications from Individuals and States ( Sijthhoff
amp Noordhoff Int Publishers BV1980 ) p11 5 DHarris MOrsquoBoyle EBates CBuckley Law of the European Convention on Human Rights ( 2
nd
edn Oxford University Press2009) p2
11
The contracting parties have an obligation to secure and ensure the rights and freedoms
set out in the Convention to everyone within their jurisdiction pursuant to Article 1 of
the Convention The Convention mainly includes civil and political rights as the
economic and social rights are protected by another instrument of the Council namely
the European Social Charter
The Convention does not only contain a list of substantive rights but it also introduces a
remarkable enforcement system in order to lsquobring lifersquo to those rights within Therefore
the Convention is far more than just a list of some essential rights its protection system
enabling individuals as well as states to make complaints to the European Court of
Human Rights (the Court) against contracting states
Two instruments were created in order to strengthen of the international protection of
human rights the right to individual application enabling those individual victims who
claim that their fundamental human rights and freedoms set forth in the Convention
have been violated to submit a complaint to the Court6 and interstate applications which
are brought by one of the contracting states against the other contracting state alleging a
violation of the Convention rights7 The essence of such an enforcement system was
stated in the Explanatory Report to Protocol No 9 as ldquothe situation whereby the
individual is granted rights but not given the possibility to exploit fully the control
machinery provided for enforcing them could today be regarded as inconsistent with
the spirit of the Convention not to mention compatibility with domestic legal
procedures in state partiesrdquo 8 This complaint mechanism based on an individualized
perspective where every victim of human rights violations of the Convention may seek
a judgment on the dispute and where appropriate obtain some form of individual redress
from the European Court
6 Article 34 of the Convention concerning individual applications reads as followsrdquoThe Court may
receive applications from any person non-governmental organisation or group of individuals claiming to
be the victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in any way the
effective exercise of this right 7 Article 35 of the Convention concerning interstate cases reads as follows ldquoAny High Contracting Party
may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto
by another High Contracting Partyrdquo 8
Council of Europe Explanatory Report to Protocol No 9 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms 6 November 1990 ETS 140 at para 12 available at
httpconventionscoeintTreatyENReportsHtml140htm [accessed 2 October 2013]
12
However in the first 50 years of the Convention between November 1953 until 1998
these two remarkable features the right to individual application and the judicial
jurisdiction of the Court ie to hear and try cases already reported upon the European
Commission of Human Rights were optional not compulsory for the contracting states9
Hence in the early stages of the Convention system individuals had no locus standi in
the Court and the contracting states were free to decide whether or not to accept (I) the
right of individual application and (II) the jurisdiction of the Court 10
Over time the right of application turned out to be a lsquoreal right of actionrdquo11
but the
evolution has never been easy since the role of this right under the European system has
been debated for so long both within the Court itself and among the scholars
Ten years later after the entry into force of Protocol 1112
on 1 November 1998 a need
has arisen to promote a new reform of the system so that the Court can cope with the
excessive case load stemming from the rapid enlargement of the Council of Europe and
the general rise in the number of applications to the Court After a long preparatory
period Council of Europe agreed on a final proposal namely Protocol No 1413
which
aroused a latent conflict between two contradictory views concerning the main purpose
of the individual complaints mechanism set by the Convention
Following section summarised the previous enforcement system which was abolished
by Protocol No11 in 1998
II The lsquoOldrsquo System of Enforcement
In fact the enforcement system operated through part time monitoring institutions
namely the European Commission of Human Rights (the Commission) the Court and
9 MJanis RKay ABradley European Human Rights Law Text and Materials (3
rd edn Oxford
University Press 2008 ) p19 10
P Sardaro rsquoIndividual Complaintsrsquo in PLemmens amp WVandenhole (eds) Protocol No14 and the
Reform of the European Court of Human Rights ( Oxford Hart Publishing 2005) pp45-67 at p47 11
Ibid 12
Council of Europe Protocol 11 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Restructuring the Control Machinery Established Thereby 11 May 1994 ETS
155 available at httpwwwrefworldorgdocid42ef8c812html [accessed 3 October 2013] 13
Council of Europe Protocol 14 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Amending the Control System of the Convention 13 May 2004 CETS
194 available at httpwwwrefworldorgdocid42ef8d0b4html [accessed 3 October 2013]
13
the Committee of Ministers (the Committee) until the creation of a single full time
court in November 1998 under Protocol 11 of the Convention
According to this initial supervisory system the Commission was entitled to receive
complaints both from the contracting states and the individuals against the other
contracting states about violations of the human rights protected by the Convention and
the relevant Protocols14
The Commission was responsible for the initial proceedings of
an application after it is received and registered such as deciding on the admissibility of
complaints as well as giving an opinion on the merits trying to reach a friendly
settlement of disputes between the parties and finding the facts The Commission was to
conclude the stage of merits with a report concerning the facts and an opinion as to
whether the facts found caused a breach of the Convention The operations of the
Commission at this stage could not be described as lsquocourt-functionsrsquo rather it could be
considered as an inquiry work outcome of which was not binding upon the relevant
contracting state15
The final decisions on the cases which were not resolved through friendly settlement
were reserved to the Court or the Committee of Ministers If the contracting state had
accepted the Courtrsquos jurisdiction the case could be referred to the Court within 3
months following the transmission of the Commissionrsquos report to the Committee As
indicated before the recognition of the Courtrsquos jurisdiction was not obligatory lsquobut
subject to a declaration by the contracting statersquo16
If neither party (the Commission or
the respondent state or the applicant) referred the case to the Court then the Committee
decided whether the violation occurred or not If there was a violation the Committee
indicated the measures which should be taken by the state including those of
compensation of the victim for the violation or changing the legal system that had
caused the violation at issue The disadvantages of this system were explained in details
by Rowe and Schlette as follows
The most obvious weakness of the old system was its extraordinary complexity three
organs worked together in a protracted multi-phase procedure There was considerable
overlap between the competencies of the various organs which meant that work was
14
RCAWhite C Ovey The European Convention on Human Rights (5 th
ed Oxford Uni Press 2010)
p10 15
L Mikaelsen supra n4p 15-16 16
İbid p16
14
often duplicated Nor was the interplay of the Commission Court and Committee the
only difficult matter the structure of the review system and the mixed judicial and
political character of the decision-making organs made the internal decision-making
process a complicated affair In sum there view system was ponderous expensive and
difficult for the complainant to understand There was a considerable risk that the
various organs would reach different decisions in substantially similar cases ndash as
happened on several occasions in decisions of the Commission and Court
A further weakness was the absence of any purely judicial mechanism for the review of
first instance Convention decisions [ie decisions of the Commission or the Committee
of Ministers]17
According to Greer recognition of the Courtrsquos judicial jurisdiction was originally
optional but politically non-optional18
Indeed by the 1990rsquos all of the member states
had already voluntarily accepted both the jurisdiction of the Court and the right of
individual application19
Eventually after the entering into force of Protocol 11 in
November 1998 the Commission and the Court was abolished to establish a new single
permanent three-tier court system with a compulsory jurisdiction-without any special
declaration by the contracting states- over all individual petitions to the Court20
that is
to say both the jurisdiction of the Court and the right to individual application has
become mandatory In following years after the adaptation of Protocol 14 a single
judge formation was created for admissibility decisions to increase the work speed of
the Court
Evolution of the Court in context of its structure and functions through these two
significant protocols to the Convention and the actual organization scheme of the Court
and procedures is examined in the following sections of this study
17
NRowe V Schlette lsquoThe Protection of Human Rights in Europe after the Eleventh Protocol to the
ECHRrsquo 23 European Law Review 3 (1998) p3 at p15 18
SGreer lsquoWhat is Wrong with the European Convention Human Rightsrsquo 30(3) Human Rights
Quarterly (2008) p680 at pp682-683 19
Janis Kay Bradley supra n9 p21 20
L Caflish lsquoThe Reform of the European Court of Human Rights Protocol 14 and Beyondrsquo 6(2)
Human Rights Law Review (2006) p 403 at p 403
15
III Right to Individual Application A Victim or a Criminal
Just a short glimpse back to first emerging and then development process of the right of
individual application under the Convention system can easily show that it has been
always in the centre of the fiery debates on the lsquofuturersquo of the Convention machinery
since to date and seem like will be in the following days
In the very early days during preparatory negotiations of the Convention when the
inclusion of the right of individual application was suggested by the Legal Committee
of the Council it was objected by some of the contracting parties arguing that lsquogreat
amount of applications made by individuals at the thought of a violation of his rights
under the convention would obstruct proper and efficient operation of the Court 21
Furthermore judicial enforcement of human rights was regarded unnecessary since
there were existed effective legislative and executive branches of government
safeguarding fundamental freedoms22
For example an announcement of a
representative of the Netherlands in 1959 about recognition of individual petition right
follows as ldquo hellip it was thought that the procedure for individual petition was
cumbersome and costly and finally it was pointed out that the right of individual
petition would have far reaching repercussions upon our legal systemrdquo23
On the other hand supporters of the idea of an individual right of application to the
Strasbourg institutions pointed out the essence of such a right for ldquoestablishment of the
dignity of the individual human spirit and to prevent injusticerdquo24
At the end of the negotiations when the Convention was signed in 1950 both the right
to individual application and the jurisdiction of the Court were optional as indicated
previously
Later developments in the European human rights system over the years have affected
the right of individual application in particular protocol 11 which has amended the
21
Council of Europe Collected Edition of the Travaux Preparatories of the European Convention on
Human Rights ( BrillampNijhoff 1975 ) paras 228-34 ( hereinafter Travaux Preparatories ) (as cited in
JanisKayBradley supra n9p15 ) 22
JFrowein lsquoEuropean Integration Through Fundamental Rightsrsquo18 Michigan Journalof Law Reform
(1984) p5 at p7 ( as cited in JanisKayBradleysupra n9 p19 ) 23
Second Chamber of the States General Preliminary Report of the Budget Commitee for Foreign
Affairs Session 1959 Docno 5359 ( as cited in Janis Kay Bradley supra n9 p20) 24
Janis Kay Bradley supra n 9 p17
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
6
7
Table of Contents THE RIGHT OF INDIVIDUAL APPLICATION UNDER THE EUROPEAN
CONVENTION ON HUMAN RIGHTS 10
I INTRODUCTION 10
II The lsquoOldrsquo System of Enforcement 12
III Right to Individual Application A Victim or a Criminal 15
IIII Subject of This Study 17
II THE RIGHT TO INDIVIDUAL APPLICATION 18
III Scope of the Right 18
IIII Protocol 14 and New Admissibility Criteria 19
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN COURT
OF HUMAN RIGHTS 21
IIII Organization of the Court 21
IIIII Procedures before the Court Concerning Individual Applications 22
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS 25
IVI Preliminary Remarks 25
IVII Who May Petition the Court 27
IVIII Exhaustion of Domestic Remedies 35
IVIV Six Month Time Limit 39
IVV Was the alleged violation committed by a contracting party 40
IVVI Competence Ratione Loci 42
IVVII Competence Ratione Temporis 44
IVVIII No Significant Disadvantage 45
IVIX Is An Application Manifestly Ill Founded 48
IVX Competent Ratione Materia 50
IVXI Abuse Of The Right Of Application 51
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE 52
VI Preliminary Remarks 52
VIIFriendly Settlement 54
VI CONCLUSION 58
ABSTRACT 60
BIBLIOGRAPHY 61
8
OumlZET
Avrupa İnsan Hakları Antlaşması Kapsamında Bireysel Başvuru Hakkı
Avrupa Konseyi tarafından hazırlanarak 3 Eyluumll 1953 tarihinde yuumlruumlrluumlğe giren Avrupa
İnsan Hakları Soumlzleşmesi ve bu soumlzleşmeyi tamamlayan ek protokoller sadece insan
haklarını tanımakla kalmamış aynı zamanda bu hakların etkin bir şekilde guumlvence altına
alınması ve korunması amacıyla bir kontrol mekanizması kurmuştur Soumlz konusu
kontrol mekanizmasının ayırt edici oumlzelliği Avrupa İnsan Hakları Soumlzleşmesirsquone taraf
olan devletlerde yaşayan yurttaşlara Soumlzleşmede guumlvence altına alınan hak ve
oumlzguumlrluumlklerin ihlal edildiği gerekccedilesiyle Avrupa İnsan Hakları Mahkemesirsquone başvuru
hakkını tanımış olmasıdır
Avrupa insan hakları sisteminin temel taşı olan bireysel başvuru hakkı hem akademik
ortamda hem de Avrupa Konseyi nezdinde yaşanan uzun tartışmalar ve değişik
zamanlarda vuku bulan ccedilok sayıda reform ccedilalışması neticesinde şekillenmiş kendine
oumlzguuml nitelikleri bulunan insan haklarını uluslaruumlstuuml duumlzeyde koruma altına alan hakları
ihlal edilen mağdurların uluslararası bir yargı organına ulaşabilme ve zararlarını
karşılayabilme olanağını sağlaması accedilısından ccedilok oumlnemli bir şikayet yoludur
Tez ccedilalışmasında ilk olarak kendine oumlzguuml nitelikleri olan bu hakkın iccedileriği kapsamı ve
kullanılması ccedileşitli dava oumlrnekleriyle teorik ve pratik accedilıdan incelenmiş olup
Mahkemenin iş yuumlkuumlnuuml azaltmak amacıyla yuumlruumltuumllen guumlncel reform ccedilalışmalarının soumlz
konusu hakkın kapsamı ve sınırlarına olan etkilerine ilişkin tartışmalara ve yorumlara
yer verilerek soumlz konusu hakkın geleceği hakkında değerlendirmeyle ccedilalışma son
bulmuştur
9
ABSTRACT
The Right of Individual Application under the European Convention on Human
Rights
The European system of human rights protection which was established under the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 ( ECHR ) is considered to be the most successful and developed human rights
enforcement mechanism throughout the world The ECHR was adopted by the Council
of Europe which was founded by ten countries in 1949 for the purpose of achieving
greater unity between its member states through the protection of fundamental freedoms
and human rights in the aftermath of the Second World War
The right of individual petition enabling individual victims to bring complaints of a
violation of rights set forth in the ECHR to the European Court of Human Rights (the
Court) against the member states and to seek redress for their grievances is rightly seen
as the cornerstone of the European Human Rights Protection system As a result of a
long process occurring over many years this right has evolved into a real lsquoright of
actionrsquo characterized by salient unique features which is worth examining
To this end the study starts with a short introduction to the historical background of the
right to individual application and the institutional evolution of the European human
rights control system and then puts into a broader context connecting the topic to
current complaints system centered on the practice and procedure of the Court on the
admissibility of applications from individuals and the resolution of the dispute
Following section focuses on the current debate on reforming the ECHR to provide a
solution to the Courtrsquos excessive case load in the wake of the ratification of lsquoProtocol
No14rsquo and the lsquoBrighton Declaration 2012rsquo at which the parties agreed on a roadmap
for the future evolution of the European human rights system This section contains
some considerations that the adaptation of reformation protocols is likely to have on the
right of individual application The keynote of this section is whether the essence of the
right of individuals would be undermined and limitedcurtailed by those proposed
protocols The study concludes with final remarks
10
THE RIGHT OF INDIVIDUAL APPLICATION UNDER
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
I INTRODUCTION
The European human rights protection system is considered to be the most extensive
and effective regime designed for the protection and promotion of human rights
throughout the world First of all it can be distinguished from the other international
instruments by its far more developed control system established under the European
Convention for the Protection of Human Rights and Fundamental Freedoms1 (the
Convention) In particular the individual right of application to the European Court of
Human Rights is seen as the cornerstone of the European Human Rights Regime
The Convention was adopted by the Council of Europe (the Council) which was
founded by ten countries2 in 1949 for the purpose of achieving greater unity between
member states through the protection of fundamental freedoms and human rights in the
aftermath of the Second World War3 Adaptation of a human rights convention for
Europe was declared as a primarily task just after the first session of the Council in
August 19494 After the negotiations the Convention the first regional human rights
protection instrument containing definitions mutual obligations with an enforcement
and control mechanism was signed in November 1950
Since its entry into force in 1953 the number of contracting parties to the Convention
has increased so rapidly specially after the fall of communism in Central and Eastern
Europe Until now 47 member states ratified the Convention which means almost 800
million people are safeguarded by the Convention 5
1 Council of Europe European Convention for the Protection of Human Rights and Fundamental
Freedoms as amended by Protocols Nos 11 and 14 4 November 1950 ETS 5 available at
httpwwwrefworldorgdocid3ae6b3b04html [accessed 12 September 2013] 2 Those 10 countries are Belgium Denmark France Ireland ItalyLuxembourgthe
NetherlandsNorwaySweden and the United Kingdom 3 Council of Europe Statue of the Council of Europe 3 August 1949 CETS 1 available at
httpconventionscoeintTreatyCommunQueVoulezVousaspNT=001ampCM=1ampCL=ENG [accessed
12 September 2013] 4 LMikaelsen European Protection on Human Rights The Practice and Procedure of the European
Commission of Human Rights on the Admissibility of Applications from Individuals and States ( Sijthhoff
amp Noordhoff Int Publishers BV1980 ) p11 5 DHarris MOrsquoBoyle EBates CBuckley Law of the European Convention on Human Rights ( 2
nd
edn Oxford University Press2009) p2
11
The contracting parties have an obligation to secure and ensure the rights and freedoms
set out in the Convention to everyone within their jurisdiction pursuant to Article 1 of
the Convention The Convention mainly includes civil and political rights as the
economic and social rights are protected by another instrument of the Council namely
the European Social Charter
The Convention does not only contain a list of substantive rights but it also introduces a
remarkable enforcement system in order to lsquobring lifersquo to those rights within Therefore
the Convention is far more than just a list of some essential rights its protection system
enabling individuals as well as states to make complaints to the European Court of
Human Rights (the Court) against contracting states
Two instruments were created in order to strengthen of the international protection of
human rights the right to individual application enabling those individual victims who
claim that their fundamental human rights and freedoms set forth in the Convention
have been violated to submit a complaint to the Court6 and interstate applications which
are brought by one of the contracting states against the other contracting state alleging a
violation of the Convention rights7 The essence of such an enforcement system was
stated in the Explanatory Report to Protocol No 9 as ldquothe situation whereby the
individual is granted rights but not given the possibility to exploit fully the control
machinery provided for enforcing them could today be regarded as inconsistent with
the spirit of the Convention not to mention compatibility with domestic legal
procedures in state partiesrdquo 8 This complaint mechanism based on an individualized
perspective where every victim of human rights violations of the Convention may seek
a judgment on the dispute and where appropriate obtain some form of individual redress
from the European Court
6 Article 34 of the Convention concerning individual applications reads as followsrdquoThe Court may
receive applications from any person non-governmental organisation or group of individuals claiming to
be the victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in any way the
effective exercise of this right 7 Article 35 of the Convention concerning interstate cases reads as follows ldquoAny High Contracting Party
may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto
by another High Contracting Partyrdquo 8
Council of Europe Explanatory Report to Protocol No 9 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms 6 November 1990 ETS 140 at para 12 available at
httpconventionscoeintTreatyENReportsHtml140htm [accessed 2 October 2013]
12
However in the first 50 years of the Convention between November 1953 until 1998
these two remarkable features the right to individual application and the judicial
jurisdiction of the Court ie to hear and try cases already reported upon the European
Commission of Human Rights were optional not compulsory for the contracting states9
Hence in the early stages of the Convention system individuals had no locus standi in
the Court and the contracting states were free to decide whether or not to accept (I) the
right of individual application and (II) the jurisdiction of the Court 10
Over time the right of application turned out to be a lsquoreal right of actionrdquo11
but the
evolution has never been easy since the role of this right under the European system has
been debated for so long both within the Court itself and among the scholars
Ten years later after the entry into force of Protocol 1112
on 1 November 1998 a need
has arisen to promote a new reform of the system so that the Court can cope with the
excessive case load stemming from the rapid enlargement of the Council of Europe and
the general rise in the number of applications to the Court After a long preparatory
period Council of Europe agreed on a final proposal namely Protocol No 1413
which
aroused a latent conflict between two contradictory views concerning the main purpose
of the individual complaints mechanism set by the Convention
Following section summarised the previous enforcement system which was abolished
by Protocol No11 in 1998
II The lsquoOldrsquo System of Enforcement
In fact the enforcement system operated through part time monitoring institutions
namely the European Commission of Human Rights (the Commission) the Court and
9 MJanis RKay ABradley European Human Rights Law Text and Materials (3
rd edn Oxford
University Press 2008 ) p19 10
P Sardaro rsquoIndividual Complaintsrsquo in PLemmens amp WVandenhole (eds) Protocol No14 and the
Reform of the European Court of Human Rights ( Oxford Hart Publishing 2005) pp45-67 at p47 11
Ibid 12
Council of Europe Protocol 11 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Restructuring the Control Machinery Established Thereby 11 May 1994 ETS
155 available at httpwwwrefworldorgdocid42ef8c812html [accessed 3 October 2013] 13
Council of Europe Protocol 14 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Amending the Control System of the Convention 13 May 2004 CETS
194 available at httpwwwrefworldorgdocid42ef8d0b4html [accessed 3 October 2013]
13
the Committee of Ministers (the Committee) until the creation of a single full time
court in November 1998 under Protocol 11 of the Convention
According to this initial supervisory system the Commission was entitled to receive
complaints both from the contracting states and the individuals against the other
contracting states about violations of the human rights protected by the Convention and
the relevant Protocols14
The Commission was responsible for the initial proceedings of
an application after it is received and registered such as deciding on the admissibility of
complaints as well as giving an opinion on the merits trying to reach a friendly
settlement of disputes between the parties and finding the facts The Commission was to
conclude the stage of merits with a report concerning the facts and an opinion as to
whether the facts found caused a breach of the Convention The operations of the
Commission at this stage could not be described as lsquocourt-functionsrsquo rather it could be
considered as an inquiry work outcome of which was not binding upon the relevant
contracting state15
The final decisions on the cases which were not resolved through friendly settlement
were reserved to the Court or the Committee of Ministers If the contracting state had
accepted the Courtrsquos jurisdiction the case could be referred to the Court within 3
months following the transmission of the Commissionrsquos report to the Committee As
indicated before the recognition of the Courtrsquos jurisdiction was not obligatory lsquobut
subject to a declaration by the contracting statersquo16
If neither party (the Commission or
the respondent state or the applicant) referred the case to the Court then the Committee
decided whether the violation occurred or not If there was a violation the Committee
indicated the measures which should be taken by the state including those of
compensation of the victim for the violation or changing the legal system that had
caused the violation at issue The disadvantages of this system were explained in details
by Rowe and Schlette as follows
The most obvious weakness of the old system was its extraordinary complexity three
organs worked together in a protracted multi-phase procedure There was considerable
overlap between the competencies of the various organs which meant that work was
14
RCAWhite C Ovey The European Convention on Human Rights (5 th
ed Oxford Uni Press 2010)
p10 15
L Mikaelsen supra n4p 15-16 16
İbid p16
14
often duplicated Nor was the interplay of the Commission Court and Committee the
only difficult matter the structure of the review system and the mixed judicial and
political character of the decision-making organs made the internal decision-making
process a complicated affair In sum there view system was ponderous expensive and
difficult for the complainant to understand There was a considerable risk that the
various organs would reach different decisions in substantially similar cases ndash as
happened on several occasions in decisions of the Commission and Court
A further weakness was the absence of any purely judicial mechanism for the review of
first instance Convention decisions [ie decisions of the Commission or the Committee
of Ministers]17
According to Greer recognition of the Courtrsquos judicial jurisdiction was originally
optional but politically non-optional18
Indeed by the 1990rsquos all of the member states
had already voluntarily accepted both the jurisdiction of the Court and the right of
individual application19
Eventually after the entering into force of Protocol 11 in
November 1998 the Commission and the Court was abolished to establish a new single
permanent three-tier court system with a compulsory jurisdiction-without any special
declaration by the contracting states- over all individual petitions to the Court20
that is
to say both the jurisdiction of the Court and the right to individual application has
become mandatory In following years after the adaptation of Protocol 14 a single
judge formation was created for admissibility decisions to increase the work speed of
the Court
Evolution of the Court in context of its structure and functions through these two
significant protocols to the Convention and the actual organization scheme of the Court
and procedures is examined in the following sections of this study
17
NRowe V Schlette lsquoThe Protection of Human Rights in Europe after the Eleventh Protocol to the
ECHRrsquo 23 European Law Review 3 (1998) p3 at p15 18
SGreer lsquoWhat is Wrong with the European Convention Human Rightsrsquo 30(3) Human Rights
Quarterly (2008) p680 at pp682-683 19
Janis Kay Bradley supra n9 p21 20
L Caflish lsquoThe Reform of the European Court of Human Rights Protocol 14 and Beyondrsquo 6(2)
Human Rights Law Review (2006) p 403 at p 403
15
III Right to Individual Application A Victim or a Criminal
Just a short glimpse back to first emerging and then development process of the right of
individual application under the Convention system can easily show that it has been
always in the centre of the fiery debates on the lsquofuturersquo of the Convention machinery
since to date and seem like will be in the following days
In the very early days during preparatory negotiations of the Convention when the
inclusion of the right of individual application was suggested by the Legal Committee
of the Council it was objected by some of the contracting parties arguing that lsquogreat
amount of applications made by individuals at the thought of a violation of his rights
under the convention would obstruct proper and efficient operation of the Court 21
Furthermore judicial enforcement of human rights was regarded unnecessary since
there were existed effective legislative and executive branches of government
safeguarding fundamental freedoms22
For example an announcement of a
representative of the Netherlands in 1959 about recognition of individual petition right
follows as ldquo hellip it was thought that the procedure for individual petition was
cumbersome and costly and finally it was pointed out that the right of individual
petition would have far reaching repercussions upon our legal systemrdquo23
On the other hand supporters of the idea of an individual right of application to the
Strasbourg institutions pointed out the essence of such a right for ldquoestablishment of the
dignity of the individual human spirit and to prevent injusticerdquo24
At the end of the negotiations when the Convention was signed in 1950 both the right
to individual application and the jurisdiction of the Court were optional as indicated
previously
Later developments in the European human rights system over the years have affected
the right of individual application in particular protocol 11 which has amended the
21
Council of Europe Collected Edition of the Travaux Preparatories of the European Convention on
Human Rights ( BrillampNijhoff 1975 ) paras 228-34 ( hereinafter Travaux Preparatories ) (as cited in
JanisKayBradley supra n9p15 ) 22
JFrowein lsquoEuropean Integration Through Fundamental Rightsrsquo18 Michigan Journalof Law Reform
(1984) p5 at p7 ( as cited in JanisKayBradleysupra n9 p19 ) 23
Second Chamber of the States General Preliminary Report of the Budget Commitee for Foreign
Affairs Session 1959 Docno 5359 ( as cited in Janis Kay Bradley supra n9 p20) 24
Janis Kay Bradley supra n 9 p17
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
7
Table of Contents THE RIGHT OF INDIVIDUAL APPLICATION UNDER THE EUROPEAN
CONVENTION ON HUMAN RIGHTS 10
I INTRODUCTION 10
II The lsquoOldrsquo System of Enforcement 12
III Right to Individual Application A Victim or a Criminal 15
IIII Subject of This Study 17
II THE RIGHT TO INDIVIDUAL APPLICATION 18
III Scope of the Right 18
IIII Protocol 14 and New Admissibility Criteria 19
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN COURT
OF HUMAN RIGHTS 21
IIII Organization of the Court 21
IIIII Procedures before the Court Concerning Individual Applications 22
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS 25
IVI Preliminary Remarks 25
IVII Who May Petition the Court 27
IVIII Exhaustion of Domestic Remedies 35
IVIV Six Month Time Limit 39
IVV Was the alleged violation committed by a contracting party 40
IVVI Competence Ratione Loci 42
IVVII Competence Ratione Temporis 44
IVVIII No Significant Disadvantage 45
IVIX Is An Application Manifestly Ill Founded 48
IVX Competent Ratione Materia 50
IVXI Abuse Of The Right Of Application 51
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE 52
VI Preliminary Remarks 52
VIIFriendly Settlement 54
VI CONCLUSION 58
ABSTRACT 60
BIBLIOGRAPHY 61
8
OumlZET
Avrupa İnsan Hakları Antlaşması Kapsamında Bireysel Başvuru Hakkı
Avrupa Konseyi tarafından hazırlanarak 3 Eyluumll 1953 tarihinde yuumlruumlrluumlğe giren Avrupa
İnsan Hakları Soumlzleşmesi ve bu soumlzleşmeyi tamamlayan ek protokoller sadece insan
haklarını tanımakla kalmamış aynı zamanda bu hakların etkin bir şekilde guumlvence altına
alınması ve korunması amacıyla bir kontrol mekanizması kurmuştur Soumlz konusu
kontrol mekanizmasının ayırt edici oumlzelliği Avrupa İnsan Hakları Soumlzleşmesirsquone taraf
olan devletlerde yaşayan yurttaşlara Soumlzleşmede guumlvence altına alınan hak ve
oumlzguumlrluumlklerin ihlal edildiği gerekccedilesiyle Avrupa İnsan Hakları Mahkemesirsquone başvuru
hakkını tanımış olmasıdır
Avrupa insan hakları sisteminin temel taşı olan bireysel başvuru hakkı hem akademik
ortamda hem de Avrupa Konseyi nezdinde yaşanan uzun tartışmalar ve değişik
zamanlarda vuku bulan ccedilok sayıda reform ccedilalışması neticesinde şekillenmiş kendine
oumlzguuml nitelikleri bulunan insan haklarını uluslaruumlstuuml duumlzeyde koruma altına alan hakları
ihlal edilen mağdurların uluslararası bir yargı organına ulaşabilme ve zararlarını
karşılayabilme olanağını sağlaması accedilısından ccedilok oumlnemli bir şikayet yoludur
Tez ccedilalışmasında ilk olarak kendine oumlzguuml nitelikleri olan bu hakkın iccedileriği kapsamı ve
kullanılması ccedileşitli dava oumlrnekleriyle teorik ve pratik accedilıdan incelenmiş olup
Mahkemenin iş yuumlkuumlnuuml azaltmak amacıyla yuumlruumltuumllen guumlncel reform ccedilalışmalarının soumlz
konusu hakkın kapsamı ve sınırlarına olan etkilerine ilişkin tartışmalara ve yorumlara
yer verilerek soumlz konusu hakkın geleceği hakkında değerlendirmeyle ccedilalışma son
bulmuştur
9
ABSTRACT
The Right of Individual Application under the European Convention on Human
Rights
The European system of human rights protection which was established under the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 ( ECHR ) is considered to be the most successful and developed human rights
enforcement mechanism throughout the world The ECHR was adopted by the Council
of Europe which was founded by ten countries in 1949 for the purpose of achieving
greater unity between its member states through the protection of fundamental freedoms
and human rights in the aftermath of the Second World War
The right of individual petition enabling individual victims to bring complaints of a
violation of rights set forth in the ECHR to the European Court of Human Rights (the
Court) against the member states and to seek redress for their grievances is rightly seen
as the cornerstone of the European Human Rights Protection system As a result of a
long process occurring over many years this right has evolved into a real lsquoright of
actionrsquo characterized by salient unique features which is worth examining
To this end the study starts with a short introduction to the historical background of the
right to individual application and the institutional evolution of the European human
rights control system and then puts into a broader context connecting the topic to
current complaints system centered on the practice and procedure of the Court on the
admissibility of applications from individuals and the resolution of the dispute
Following section focuses on the current debate on reforming the ECHR to provide a
solution to the Courtrsquos excessive case load in the wake of the ratification of lsquoProtocol
No14rsquo and the lsquoBrighton Declaration 2012rsquo at which the parties agreed on a roadmap
for the future evolution of the European human rights system This section contains
some considerations that the adaptation of reformation protocols is likely to have on the
right of individual application The keynote of this section is whether the essence of the
right of individuals would be undermined and limitedcurtailed by those proposed
protocols The study concludes with final remarks
10
THE RIGHT OF INDIVIDUAL APPLICATION UNDER
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
I INTRODUCTION
The European human rights protection system is considered to be the most extensive
and effective regime designed for the protection and promotion of human rights
throughout the world First of all it can be distinguished from the other international
instruments by its far more developed control system established under the European
Convention for the Protection of Human Rights and Fundamental Freedoms1 (the
Convention) In particular the individual right of application to the European Court of
Human Rights is seen as the cornerstone of the European Human Rights Regime
The Convention was adopted by the Council of Europe (the Council) which was
founded by ten countries2 in 1949 for the purpose of achieving greater unity between
member states through the protection of fundamental freedoms and human rights in the
aftermath of the Second World War3 Adaptation of a human rights convention for
Europe was declared as a primarily task just after the first session of the Council in
August 19494 After the negotiations the Convention the first regional human rights
protection instrument containing definitions mutual obligations with an enforcement
and control mechanism was signed in November 1950
Since its entry into force in 1953 the number of contracting parties to the Convention
has increased so rapidly specially after the fall of communism in Central and Eastern
Europe Until now 47 member states ratified the Convention which means almost 800
million people are safeguarded by the Convention 5
1 Council of Europe European Convention for the Protection of Human Rights and Fundamental
Freedoms as amended by Protocols Nos 11 and 14 4 November 1950 ETS 5 available at
httpwwwrefworldorgdocid3ae6b3b04html [accessed 12 September 2013] 2 Those 10 countries are Belgium Denmark France Ireland ItalyLuxembourgthe
NetherlandsNorwaySweden and the United Kingdom 3 Council of Europe Statue of the Council of Europe 3 August 1949 CETS 1 available at
httpconventionscoeintTreatyCommunQueVoulezVousaspNT=001ampCM=1ampCL=ENG [accessed
12 September 2013] 4 LMikaelsen European Protection on Human Rights The Practice and Procedure of the European
Commission of Human Rights on the Admissibility of Applications from Individuals and States ( Sijthhoff
amp Noordhoff Int Publishers BV1980 ) p11 5 DHarris MOrsquoBoyle EBates CBuckley Law of the European Convention on Human Rights ( 2
nd
edn Oxford University Press2009) p2
11
The contracting parties have an obligation to secure and ensure the rights and freedoms
set out in the Convention to everyone within their jurisdiction pursuant to Article 1 of
the Convention The Convention mainly includes civil and political rights as the
economic and social rights are protected by another instrument of the Council namely
the European Social Charter
The Convention does not only contain a list of substantive rights but it also introduces a
remarkable enforcement system in order to lsquobring lifersquo to those rights within Therefore
the Convention is far more than just a list of some essential rights its protection system
enabling individuals as well as states to make complaints to the European Court of
Human Rights (the Court) against contracting states
Two instruments were created in order to strengthen of the international protection of
human rights the right to individual application enabling those individual victims who
claim that their fundamental human rights and freedoms set forth in the Convention
have been violated to submit a complaint to the Court6 and interstate applications which
are brought by one of the contracting states against the other contracting state alleging a
violation of the Convention rights7 The essence of such an enforcement system was
stated in the Explanatory Report to Protocol No 9 as ldquothe situation whereby the
individual is granted rights but not given the possibility to exploit fully the control
machinery provided for enforcing them could today be regarded as inconsistent with
the spirit of the Convention not to mention compatibility with domestic legal
procedures in state partiesrdquo 8 This complaint mechanism based on an individualized
perspective where every victim of human rights violations of the Convention may seek
a judgment on the dispute and where appropriate obtain some form of individual redress
from the European Court
6 Article 34 of the Convention concerning individual applications reads as followsrdquoThe Court may
receive applications from any person non-governmental organisation or group of individuals claiming to
be the victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in any way the
effective exercise of this right 7 Article 35 of the Convention concerning interstate cases reads as follows ldquoAny High Contracting Party
may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto
by another High Contracting Partyrdquo 8
Council of Europe Explanatory Report to Protocol No 9 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms 6 November 1990 ETS 140 at para 12 available at
httpconventionscoeintTreatyENReportsHtml140htm [accessed 2 October 2013]
12
However in the first 50 years of the Convention between November 1953 until 1998
these two remarkable features the right to individual application and the judicial
jurisdiction of the Court ie to hear and try cases already reported upon the European
Commission of Human Rights were optional not compulsory for the contracting states9
Hence in the early stages of the Convention system individuals had no locus standi in
the Court and the contracting states were free to decide whether or not to accept (I) the
right of individual application and (II) the jurisdiction of the Court 10
Over time the right of application turned out to be a lsquoreal right of actionrdquo11
but the
evolution has never been easy since the role of this right under the European system has
been debated for so long both within the Court itself and among the scholars
Ten years later after the entry into force of Protocol 1112
on 1 November 1998 a need
has arisen to promote a new reform of the system so that the Court can cope with the
excessive case load stemming from the rapid enlargement of the Council of Europe and
the general rise in the number of applications to the Court After a long preparatory
period Council of Europe agreed on a final proposal namely Protocol No 1413
which
aroused a latent conflict between two contradictory views concerning the main purpose
of the individual complaints mechanism set by the Convention
Following section summarised the previous enforcement system which was abolished
by Protocol No11 in 1998
II The lsquoOldrsquo System of Enforcement
In fact the enforcement system operated through part time monitoring institutions
namely the European Commission of Human Rights (the Commission) the Court and
9 MJanis RKay ABradley European Human Rights Law Text and Materials (3
rd edn Oxford
University Press 2008 ) p19 10
P Sardaro rsquoIndividual Complaintsrsquo in PLemmens amp WVandenhole (eds) Protocol No14 and the
Reform of the European Court of Human Rights ( Oxford Hart Publishing 2005) pp45-67 at p47 11
Ibid 12
Council of Europe Protocol 11 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Restructuring the Control Machinery Established Thereby 11 May 1994 ETS
155 available at httpwwwrefworldorgdocid42ef8c812html [accessed 3 October 2013] 13
Council of Europe Protocol 14 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Amending the Control System of the Convention 13 May 2004 CETS
194 available at httpwwwrefworldorgdocid42ef8d0b4html [accessed 3 October 2013]
13
the Committee of Ministers (the Committee) until the creation of a single full time
court in November 1998 under Protocol 11 of the Convention
According to this initial supervisory system the Commission was entitled to receive
complaints both from the contracting states and the individuals against the other
contracting states about violations of the human rights protected by the Convention and
the relevant Protocols14
The Commission was responsible for the initial proceedings of
an application after it is received and registered such as deciding on the admissibility of
complaints as well as giving an opinion on the merits trying to reach a friendly
settlement of disputes between the parties and finding the facts The Commission was to
conclude the stage of merits with a report concerning the facts and an opinion as to
whether the facts found caused a breach of the Convention The operations of the
Commission at this stage could not be described as lsquocourt-functionsrsquo rather it could be
considered as an inquiry work outcome of which was not binding upon the relevant
contracting state15
The final decisions on the cases which were not resolved through friendly settlement
were reserved to the Court or the Committee of Ministers If the contracting state had
accepted the Courtrsquos jurisdiction the case could be referred to the Court within 3
months following the transmission of the Commissionrsquos report to the Committee As
indicated before the recognition of the Courtrsquos jurisdiction was not obligatory lsquobut
subject to a declaration by the contracting statersquo16
If neither party (the Commission or
the respondent state or the applicant) referred the case to the Court then the Committee
decided whether the violation occurred or not If there was a violation the Committee
indicated the measures which should be taken by the state including those of
compensation of the victim for the violation or changing the legal system that had
caused the violation at issue The disadvantages of this system were explained in details
by Rowe and Schlette as follows
The most obvious weakness of the old system was its extraordinary complexity three
organs worked together in a protracted multi-phase procedure There was considerable
overlap between the competencies of the various organs which meant that work was
14
RCAWhite C Ovey The European Convention on Human Rights (5 th
ed Oxford Uni Press 2010)
p10 15
L Mikaelsen supra n4p 15-16 16
İbid p16
14
often duplicated Nor was the interplay of the Commission Court and Committee the
only difficult matter the structure of the review system and the mixed judicial and
political character of the decision-making organs made the internal decision-making
process a complicated affair In sum there view system was ponderous expensive and
difficult for the complainant to understand There was a considerable risk that the
various organs would reach different decisions in substantially similar cases ndash as
happened on several occasions in decisions of the Commission and Court
A further weakness was the absence of any purely judicial mechanism for the review of
first instance Convention decisions [ie decisions of the Commission or the Committee
of Ministers]17
According to Greer recognition of the Courtrsquos judicial jurisdiction was originally
optional but politically non-optional18
Indeed by the 1990rsquos all of the member states
had already voluntarily accepted both the jurisdiction of the Court and the right of
individual application19
Eventually after the entering into force of Protocol 11 in
November 1998 the Commission and the Court was abolished to establish a new single
permanent three-tier court system with a compulsory jurisdiction-without any special
declaration by the contracting states- over all individual petitions to the Court20
that is
to say both the jurisdiction of the Court and the right to individual application has
become mandatory In following years after the adaptation of Protocol 14 a single
judge formation was created for admissibility decisions to increase the work speed of
the Court
Evolution of the Court in context of its structure and functions through these two
significant protocols to the Convention and the actual organization scheme of the Court
and procedures is examined in the following sections of this study
17
NRowe V Schlette lsquoThe Protection of Human Rights in Europe after the Eleventh Protocol to the
ECHRrsquo 23 European Law Review 3 (1998) p3 at p15 18
SGreer lsquoWhat is Wrong with the European Convention Human Rightsrsquo 30(3) Human Rights
Quarterly (2008) p680 at pp682-683 19
Janis Kay Bradley supra n9 p21 20
L Caflish lsquoThe Reform of the European Court of Human Rights Protocol 14 and Beyondrsquo 6(2)
Human Rights Law Review (2006) p 403 at p 403
15
III Right to Individual Application A Victim or a Criminal
Just a short glimpse back to first emerging and then development process of the right of
individual application under the Convention system can easily show that it has been
always in the centre of the fiery debates on the lsquofuturersquo of the Convention machinery
since to date and seem like will be in the following days
In the very early days during preparatory negotiations of the Convention when the
inclusion of the right of individual application was suggested by the Legal Committee
of the Council it was objected by some of the contracting parties arguing that lsquogreat
amount of applications made by individuals at the thought of a violation of his rights
under the convention would obstruct proper and efficient operation of the Court 21
Furthermore judicial enforcement of human rights was regarded unnecessary since
there were existed effective legislative and executive branches of government
safeguarding fundamental freedoms22
For example an announcement of a
representative of the Netherlands in 1959 about recognition of individual petition right
follows as ldquo hellip it was thought that the procedure for individual petition was
cumbersome and costly and finally it was pointed out that the right of individual
petition would have far reaching repercussions upon our legal systemrdquo23
On the other hand supporters of the idea of an individual right of application to the
Strasbourg institutions pointed out the essence of such a right for ldquoestablishment of the
dignity of the individual human spirit and to prevent injusticerdquo24
At the end of the negotiations when the Convention was signed in 1950 both the right
to individual application and the jurisdiction of the Court were optional as indicated
previously
Later developments in the European human rights system over the years have affected
the right of individual application in particular protocol 11 which has amended the
21
Council of Europe Collected Edition of the Travaux Preparatories of the European Convention on
Human Rights ( BrillampNijhoff 1975 ) paras 228-34 ( hereinafter Travaux Preparatories ) (as cited in
JanisKayBradley supra n9p15 ) 22
JFrowein lsquoEuropean Integration Through Fundamental Rightsrsquo18 Michigan Journalof Law Reform
(1984) p5 at p7 ( as cited in JanisKayBradleysupra n9 p19 ) 23
Second Chamber of the States General Preliminary Report of the Budget Commitee for Foreign
Affairs Session 1959 Docno 5359 ( as cited in Janis Kay Bradley supra n9 p20) 24
Janis Kay Bradley supra n 9 p17
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
8
OumlZET
Avrupa İnsan Hakları Antlaşması Kapsamında Bireysel Başvuru Hakkı
Avrupa Konseyi tarafından hazırlanarak 3 Eyluumll 1953 tarihinde yuumlruumlrluumlğe giren Avrupa
İnsan Hakları Soumlzleşmesi ve bu soumlzleşmeyi tamamlayan ek protokoller sadece insan
haklarını tanımakla kalmamış aynı zamanda bu hakların etkin bir şekilde guumlvence altına
alınması ve korunması amacıyla bir kontrol mekanizması kurmuştur Soumlz konusu
kontrol mekanizmasının ayırt edici oumlzelliği Avrupa İnsan Hakları Soumlzleşmesirsquone taraf
olan devletlerde yaşayan yurttaşlara Soumlzleşmede guumlvence altına alınan hak ve
oumlzguumlrluumlklerin ihlal edildiği gerekccedilesiyle Avrupa İnsan Hakları Mahkemesirsquone başvuru
hakkını tanımış olmasıdır
Avrupa insan hakları sisteminin temel taşı olan bireysel başvuru hakkı hem akademik
ortamda hem de Avrupa Konseyi nezdinde yaşanan uzun tartışmalar ve değişik
zamanlarda vuku bulan ccedilok sayıda reform ccedilalışması neticesinde şekillenmiş kendine
oumlzguuml nitelikleri bulunan insan haklarını uluslaruumlstuuml duumlzeyde koruma altına alan hakları
ihlal edilen mağdurların uluslararası bir yargı organına ulaşabilme ve zararlarını
karşılayabilme olanağını sağlaması accedilısından ccedilok oumlnemli bir şikayet yoludur
Tez ccedilalışmasında ilk olarak kendine oumlzguuml nitelikleri olan bu hakkın iccedileriği kapsamı ve
kullanılması ccedileşitli dava oumlrnekleriyle teorik ve pratik accedilıdan incelenmiş olup
Mahkemenin iş yuumlkuumlnuuml azaltmak amacıyla yuumlruumltuumllen guumlncel reform ccedilalışmalarının soumlz
konusu hakkın kapsamı ve sınırlarına olan etkilerine ilişkin tartışmalara ve yorumlara
yer verilerek soumlz konusu hakkın geleceği hakkında değerlendirmeyle ccedilalışma son
bulmuştur
9
ABSTRACT
The Right of Individual Application under the European Convention on Human
Rights
The European system of human rights protection which was established under the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 ( ECHR ) is considered to be the most successful and developed human rights
enforcement mechanism throughout the world The ECHR was adopted by the Council
of Europe which was founded by ten countries in 1949 for the purpose of achieving
greater unity between its member states through the protection of fundamental freedoms
and human rights in the aftermath of the Second World War
The right of individual petition enabling individual victims to bring complaints of a
violation of rights set forth in the ECHR to the European Court of Human Rights (the
Court) against the member states and to seek redress for their grievances is rightly seen
as the cornerstone of the European Human Rights Protection system As a result of a
long process occurring over many years this right has evolved into a real lsquoright of
actionrsquo characterized by salient unique features which is worth examining
To this end the study starts with a short introduction to the historical background of the
right to individual application and the institutional evolution of the European human
rights control system and then puts into a broader context connecting the topic to
current complaints system centered on the practice and procedure of the Court on the
admissibility of applications from individuals and the resolution of the dispute
Following section focuses on the current debate on reforming the ECHR to provide a
solution to the Courtrsquos excessive case load in the wake of the ratification of lsquoProtocol
No14rsquo and the lsquoBrighton Declaration 2012rsquo at which the parties agreed on a roadmap
for the future evolution of the European human rights system This section contains
some considerations that the adaptation of reformation protocols is likely to have on the
right of individual application The keynote of this section is whether the essence of the
right of individuals would be undermined and limitedcurtailed by those proposed
protocols The study concludes with final remarks
10
THE RIGHT OF INDIVIDUAL APPLICATION UNDER
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
I INTRODUCTION
The European human rights protection system is considered to be the most extensive
and effective regime designed for the protection and promotion of human rights
throughout the world First of all it can be distinguished from the other international
instruments by its far more developed control system established under the European
Convention for the Protection of Human Rights and Fundamental Freedoms1 (the
Convention) In particular the individual right of application to the European Court of
Human Rights is seen as the cornerstone of the European Human Rights Regime
The Convention was adopted by the Council of Europe (the Council) which was
founded by ten countries2 in 1949 for the purpose of achieving greater unity between
member states through the protection of fundamental freedoms and human rights in the
aftermath of the Second World War3 Adaptation of a human rights convention for
Europe was declared as a primarily task just after the first session of the Council in
August 19494 After the negotiations the Convention the first regional human rights
protection instrument containing definitions mutual obligations with an enforcement
and control mechanism was signed in November 1950
Since its entry into force in 1953 the number of contracting parties to the Convention
has increased so rapidly specially after the fall of communism in Central and Eastern
Europe Until now 47 member states ratified the Convention which means almost 800
million people are safeguarded by the Convention 5
1 Council of Europe European Convention for the Protection of Human Rights and Fundamental
Freedoms as amended by Protocols Nos 11 and 14 4 November 1950 ETS 5 available at
httpwwwrefworldorgdocid3ae6b3b04html [accessed 12 September 2013] 2 Those 10 countries are Belgium Denmark France Ireland ItalyLuxembourgthe
NetherlandsNorwaySweden and the United Kingdom 3 Council of Europe Statue of the Council of Europe 3 August 1949 CETS 1 available at
httpconventionscoeintTreatyCommunQueVoulezVousaspNT=001ampCM=1ampCL=ENG [accessed
12 September 2013] 4 LMikaelsen European Protection on Human Rights The Practice and Procedure of the European
Commission of Human Rights on the Admissibility of Applications from Individuals and States ( Sijthhoff
amp Noordhoff Int Publishers BV1980 ) p11 5 DHarris MOrsquoBoyle EBates CBuckley Law of the European Convention on Human Rights ( 2
nd
edn Oxford University Press2009) p2
11
The contracting parties have an obligation to secure and ensure the rights and freedoms
set out in the Convention to everyone within their jurisdiction pursuant to Article 1 of
the Convention The Convention mainly includes civil and political rights as the
economic and social rights are protected by another instrument of the Council namely
the European Social Charter
The Convention does not only contain a list of substantive rights but it also introduces a
remarkable enforcement system in order to lsquobring lifersquo to those rights within Therefore
the Convention is far more than just a list of some essential rights its protection system
enabling individuals as well as states to make complaints to the European Court of
Human Rights (the Court) against contracting states
Two instruments were created in order to strengthen of the international protection of
human rights the right to individual application enabling those individual victims who
claim that their fundamental human rights and freedoms set forth in the Convention
have been violated to submit a complaint to the Court6 and interstate applications which
are brought by one of the contracting states against the other contracting state alleging a
violation of the Convention rights7 The essence of such an enforcement system was
stated in the Explanatory Report to Protocol No 9 as ldquothe situation whereby the
individual is granted rights but not given the possibility to exploit fully the control
machinery provided for enforcing them could today be regarded as inconsistent with
the spirit of the Convention not to mention compatibility with domestic legal
procedures in state partiesrdquo 8 This complaint mechanism based on an individualized
perspective where every victim of human rights violations of the Convention may seek
a judgment on the dispute and where appropriate obtain some form of individual redress
from the European Court
6 Article 34 of the Convention concerning individual applications reads as followsrdquoThe Court may
receive applications from any person non-governmental organisation or group of individuals claiming to
be the victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in any way the
effective exercise of this right 7 Article 35 of the Convention concerning interstate cases reads as follows ldquoAny High Contracting Party
may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto
by another High Contracting Partyrdquo 8
Council of Europe Explanatory Report to Protocol No 9 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms 6 November 1990 ETS 140 at para 12 available at
httpconventionscoeintTreatyENReportsHtml140htm [accessed 2 October 2013]
12
However in the first 50 years of the Convention between November 1953 until 1998
these two remarkable features the right to individual application and the judicial
jurisdiction of the Court ie to hear and try cases already reported upon the European
Commission of Human Rights were optional not compulsory for the contracting states9
Hence in the early stages of the Convention system individuals had no locus standi in
the Court and the contracting states were free to decide whether or not to accept (I) the
right of individual application and (II) the jurisdiction of the Court 10
Over time the right of application turned out to be a lsquoreal right of actionrdquo11
but the
evolution has never been easy since the role of this right under the European system has
been debated for so long both within the Court itself and among the scholars
Ten years later after the entry into force of Protocol 1112
on 1 November 1998 a need
has arisen to promote a new reform of the system so that the Court can cope with the
excessive case load stemming from the rapid enlargement of the Council of Europe and
the general rise in the number of applications to the Court After a long preparatory
period Council of Europe agreed on a final proposal namely Protocol No 1413
which
aroused a latent conflict between two contradictory views concerning the main purpose
of the individual complaints mechanism set by the Convention
Following section summarised the previous enforcement system which was abolished
by Protocol No11 in 1998
II The lsquoOldrsquo System of Enforcement
In fact the enforcement system operated through part time monitoring institutions
namely the European Commission of Human Rights (the Commission) the Court and
9 MJanis RKay ABradley European Human Rights Law Text and Materials (3
rd edn Oxford
University Press 2008 ) p19 10
P Sardaro rsquoIndividual Complaintsrsquo in PLemmens amp WVandenhole (eds) Protocol No14 and the
Reform of the European Court of Human Rights ( Oxford Hart Publishing 2005) pp45-67 at p47 11
Ibid 12
Council of Europe Protocol 11 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Restructuring the Control Machinery Established Thereby 11 May 1994 ETS
155 available at httpwwwrefworldorgdocid42ef8c812html [accessed 3 October 2013] 13
Council of Europe Protocol 14 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Amending the Control System of the Convention 13 May 2004 CETS
194 available at httpwwwrefworldorgdocid42ef8d0b4html [accessed 3 October 2013]
13
the Committee of Ministers (the Committee) until the creation of a single full time
court in November 1998 under Protocol 11 of the Convention
According to this initial supervisory system the Commission was entitled to receive
complaints both from the contracting states and the individuals against the other
contracting states about violations of the human rights protected by the Convention and
the relevant Protocols14
The Commission was responsible for the initial proceedings of
an application after it is received and registered such as deciding on the admissibility of
complaints as well as giving an opinion on the merits trying to reach a friendly
settlement of disputes between the parties and finding the facts The Commission was to
conclude the stage of merits with a report concerning the facts and an opinion as to
whether the facts found caused a breach of the Convention The operations of the
Commission at this stage could not be described as lsquocourt-functionsrsquo rather it could be
considered as an inquiry work outcome of which was not binding upon the relevant
contracting state15
The final decisions on the cases which were not resolved through friendly settlement
were reserved to the Court or the Committee of Ministers If the contracting state had
accepted the Courtrsquos jurisdiction the case could be referred to the Court within 3
months following the transmission of the Commissionrsquos report to the Committee As
indicated before the recognition of the Courtrsquos jurisdiction was not obligatory lsquobut
subject to a declaration by the contracting statersquo16
If neither party (the Commission or
the respondent state or the applicant) referred the case to the Court then the Committee
decided whether the violation occurred or not If there was a violation the Committee
indicated the measures which should be taken by the state including those of
compensation of the victim for the violation or changing the legal system that had
caused the violation at issue The disadvantages of this system were explained in details
by Rowe and Schlette as follows
The most obvious weakness of the old system was its extraordinary complexity three
organs worked together in a protracted multi-phase procedure There was considerable
overlap between the competencies of the various organs which meant that work was
14
RCAWhite C Ovey The European Convention on Human Rights (5 th
ed Oxford Uni Press 2010)
p10 15
L Mikaelsen supra n4p 15-16 16
İbid p16
14
often duplicated Nor was the interplay of the Commission Court and Committee the
only difficult matter the structure of the review system and the mixed judicial and
political character of the decision-making organs made the internal decision-making
process a complicated affair In sum there view system was ponderous expensive and
difficult for the complainant to understand There was a considerable risk that the
various organs would reach different decisions in substantially similar cases ndash as
happened on several occasions in decisions of the Commission and Court
A further weakness was the absence of any purely judicial mechanism for the review of
first instance Convention decisions [ie decisions of the Commission or the Committee
of Ministers]17
According to Greer recognition of the Courtrsquos judicial jurisdiction was originally
optional but politically non-optional18
Indeed by the 1990rsquos all of the member states
had already voluntarily accepted both the jurisdiction of the Court and the right of
individual application19
Eventually after the entering into force of Protocol 11 in
November 1998 the Commission and the Court was abolished to establish a new single
permanent three-tier court system with a compulsory jurisdiction-without any special
declaration by the contracting states- over all individual petitions to the Court20
that is
to say both the jurisdiction of the Court and the right to individual application has
become mandatory In following years after the adaptation of Protocol 14 a single
judge formation was created for admissibility decisions to increase the work speed of
the Court
Evolution of the Court in context of its structure and functions through these two
significant protocols to the Convention and the actual organization scheme of the Court
and procedures is examined in the following sections of this study
17
NRowe V Schlette lsquoThe Protection of Human Rights in Europe after the Eleventh Protocol to the
ECHRrsquo 23 European Law Review 3 (1998) p3 at p15 18
SGreer lsquoWhat is Wrong with the European Convention Human Rightsrsquo 30(3) Human Rights
Quarterly (2008) p680 at pp682-683 19
Janis Kay Bradley supra n9 p21 20
L Caflish lsquoThe Reform of the European Court of Human Rights Protocol 14 and Beyondrsquo 6(2)
Human Rights Law Review (2006) p 403 at p 403
15
III Right to Individual Application A Victim or a Criminal
Just a short glimpse back to first emerging and then development process of the right of
individual application under the Convention system can easily show that it has been
always in the centre of the fiery debates on the lsquofuturersquo of the Convention machinery
since to date and seem like will be in the following days
In the very early days during preparatory negotiations of the Convention when the
inclusion of the right of individual application was suggested by the Legal Committee
of the Council it was objected by some of the contracting parties arguing that lsquogreat
amount of applications made by individuals at the thought of a violation of his rights
under the convention would obstruct proper and efficient operation of the Court 21
Furthermore judicial enforcement of human rights was regarded unnecessary since
there were existed effective legislative and executive branches of government
safeguarding fundamental freedoms22
For example an announcement of a
representative of the Netherlands in 1959 about recognition of individual petition right
follows as ldquo hellip it was thought that the procedure for individual petition was
cumbersome and costly and finally it was pointed out that the right of individual
petition would have far reaching repercussions upon our legal systemrdquo23
On the other hand supporters of the idea of an individual right of application to the
Strasbourg institutions pointed out the essence of such a right for ldquoestablishment of the
dignity of the individual human spirit and to prevent injusticerdquo24
At the end of the negotiations when the Convention was signed in 1950 both the right
to individual application and the jurisdiction of the Court were optional as indicated
previously
Later developments in the European human rights system over the years have affected
the right of individual application in particular protocol 11 which has amended the
21
Council of Europe Collected Edition of the Travaux Preparatories of the European Convention on
Human Rights ( BrillampNijhoff 1975 ) paras 228-34 ( hereinafter Travaux Preparatories ) (as cited in
JanisKayBradley supra n9p15 ) 22
JFrowein lsquoEuropean Integration Through Fundamental Rightsrsquo18 Michigan Journalof Law Reform
(1984) p5 at p7 ( as cited in JanisKayBradleysupra n9 p19 ) 23
Second Chamber of the States General Preliminary Report of the Budget Commitee for Foreign
Affairs Session 1959 Docno 5359 ( as cited in Janis Kay Bradley supra n9 p20) 24
Janis Kay Bradley supra n 9 p17
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
9
ABSTRACT
The Right of Individual Application under the European Convention on Human
Rights
The European system of human rights protection which was established under the
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 ( ECHR ) is considered to be the most successful and developed human rights
enforcement mechanism throughout the world The ECHR was adopted by the Council
of Europe which was founded by ten countries in 1949 for the purpose of achieving
greater unity between its member states through the protection of fundamental freedoms
and human rights in the aftermath of the Second World War
The right of individual petition enabling individual victims to bring complaints of a
violation of rights set forth in the ECHR to the European Court of Human Rights (the
Court) against the member states and to seek redress for their grievances is rightly seen
as the cornerstone of the European Human Rights Protection system As a result of a
long process occurring over many years this right has evolved into a real lsquoright of
actionrsquo characterized by salient unique features which is worth examining
To this end the study starts with a short introduction to the historical background of the
right to individual application and the institutional evolution of the European human
rights control system and then puts into a broader context connecting the topic to
current complaints system centered on the practice and procedure of the Court on the
admissibility of applications from individuals and the resolution of the dispute
Following section focuses on the current debate on reforming the ECHR to provide a
solution to the Courtrsquos excessive case load in the wake of the ratification of lsquoProtocol
No14rsquo and the lsquoBrighton Declaration 2012rsquo at which the parties agreed on a roadmap
for the future evolution of the European human rights system This section contains
some considerations that the adaptation of reformation protocols is likely to have on the
right of individual application The keynote of this section is whether the essence of the
right of individuals would be undermined and limitedcurtailed by those proposed
protocols The study concludes with final remarks
10
THE RIGHT OF INDIVIDUAL APPLICATION UNDER
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
I INTRODUCTION
The European human rights protection system is considered to be the most extensive
and effective regime designed for the protection and promotion of human rights
throughout the world First of all it can be distinguished from the other international
instruments by its far more developed control system established under the European
Convention for the Protection of Human Rights and Fundamental Freedoms1 (the
Convention) In particular the individual right of application to the European Court of
Human Rights is seen as the cornerstone of the European Human Rights Regime
The Convention was adopted by the Council of Europe (the Council) which was
founded by ten countries2 in 1949 for the purpose of achieving greater unity between
member states through the protection of fundamental freedoms and human rights in the
aftermath of the Second World War3 Adaptation of a human rights convention for
Europe was declared as a primarily task just after the first session of the Council in
August 19494 After the negotiations the Convention the first regional human rights
protection instrument containing definitions mutual obligations with an enforcement
and control mechanism was signed in November 1950
Since its entry into force in 1953 the number of contracting parties to the Convention
has increased so rapidly specially after the fall of communism in Central and Eastern
Europe Until now 47 member states ratified the Convention which means almost 800
million people are safeguarded by the Convention 5
1 Council of Europe European Convention for the Protection of Human Rights and Fundamental
Freedoms as amended by Protocols Nos 11 and 14 4 November 1950 ETS 5 available at
httpwwwrefworldorgdocid3ae6b3b04html [accessed 12 September 2013] 2 Those 10 countries are Belgium Denmark France Ireland ItalyLuxembourgthe
NetherlandsNorwaySweden and the United Kingdom 3 Council of Europe Statue of the Council of Europe 3 August 1949 CETS 1 available at
httpconventionscoeintTreatyCommunQueVoulezVousaspNT=001ampCM=1ampCL=ENG [accessed
12 September 2013] 4 LMikaelsen European Protection on Human Rights The Practice and Procedure of the European
Commission of Human Rights on the Admissibility of Applications from Individuals and States ( Sijthhoff
amp Noordhoff Int Publishers BV1980 ) p11 5 DHarris MOrsquoBoyle EBates CBuckley Law of the European Convention on Human Rights ( 2
nd
edn Oxford University Press2009) p2
11
The contracting parties have an obligation to secure and ensure the rights and freedoms
set out in the Convention to everyone within their jurisdiction pursuant to Article 1 of
the Convention The Convention mainly includes civil and political rights as the
economic and social rights are protected by another instrument of the Council namely
the European Social Charter
The Convention does not only contain a list of substantive rights but it also introduces a
remarkable enforcement system in order to lsquobring lifersquo to those rights within Therefore
the Convention is far more than just a list of some essential rights its protection system
enabling individuals as well as states to make complaints to the European Court of
Human Rights (the Court) against contracting states
Two instruments were created in order to strengthen of the international protection of
human rights the right to individual application enabling those individual victims who
claim that their fundamental human rights and freedoms set forth in the Convention
have been violated to submit a complaint to the Court6 and interstate applications which
are brought by one of the contracting states against the other contracting state alleging a
violation of the Convention rights7 The essence of such an enforcement system was
stated in the Explanatory Report to Protocol No 9 as ldquothe situation whereby the
individual is granted rights but not given the possibility to exploit fully the control
machinery provided for enforcing them could today be regarded as inconsistent with
the spirit of the Convention not to mention compatibility with domestic legal
procedures in state partiesrdquo 8 This complaint mechanism based on an individualized
perspective where every victim of human rights violations of the Convention may seek
a judgment on the dispute and where appropriate obtain some form of individual redress
from the European Court
6 Article 34 of the Convention concerning individual applications reads as followsrdquoThe Court may
receive applications from any person non-governmental organisation or group of individuals claiming to
be the victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in any way the
effective exercise of this right 7 Article 35 of the Convention concerning interstate cases reads as follows ldquoAny High Contracting Party
may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto
by another High Contracting Partyrdquo 8
Council of Europe Explanatory Report to Protocol No 9 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms 6 November 1990 ETS 140 at para 12 available at
httpconventionscoeintTreatyENReportsHtml140htm [accessed 2 October 2013]
12
However in the first 50 years of the Convention between November 1953 until 1998
these two remarkable features the right to individual application and the judicial
jurisdiction of the Court ie to hear and try cases already reported upon the European
Commission of Human Rights were optional not compulsory for the contracting states9
Hence in the early stages of the Convention system individuals had no locus standi in
the Court and the contracting states were free to decide whether or not to accept (I) the
right of individual application and (II) the jurisdiction of the Court 10
Over time the right of application turned out to be a lsquoreal right of actionrdquo11
but the
evolution has never been easy since the role of this right under the European system has
been debated for so long both within the Court itself and among the scholars
Ten years later after the entry into force of Protocol 1112
on 1 November 1998 a need
has arisen to promote a new reform of the system so that the Court can cope with the
excessive case load stemming from the rapid enlargement of the Council of Europe and
the general rise in the number of applications to the Court After a long preparatory
period Council of Europe agreed on a final proposal namely Protocol No 1413
which
aroused a latent conflict between two contradictory views concerning the main purpose
of the individual complaints mechanism set by the Convention
Following section summarised the previous enforcement system which was abolished
by Protocol No11 in 1998
II The lsquoOldrsquo System of Enforcement
In fact the enforcement system operated through part time monitoring institutions
namely the European Commission of Human Rights (the Commission) the Court and
9 MJanis RKay ABradley European Human Rights Law Text and Materials (3
rd edn Oxford
University Press 2008 ) p19 10
P Sardaro rsquoIndividual Complaintsrsquo in PLemmens amp WVandenhole (eds) Protocol No14 and the
Reform of the European Court of Human Rights ( Oxford Hart Publishing 2005) pp45-67 at p47 11
Ibid 12
Council of Europe Protocol 11 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Restructuring the Control Machinery Established Thereby 11 May 1994 ETS
155 available at httpwwwrefworldorgdocid42ef8c812html [accessed 3 October 2013] 13
Council of Europe Protocol 14 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Amending the Control System of the Convention 13 May 2004 CETS
194 available at httpwwwrefworldorgdocid42ef8d0b4html [accessed 3 October 2013]
13
the Committee of Ministers (the Committee) until the creation of a single full time
court in November 1998 under Protocol 11 of the Convention
According to this initial supervisory system the Commission was entitled to receive
complaints both from the contracting states and the individuals against the other
contracting states about violations of the human rights protected by the Convention and
the relevant Protocols14
The Commission was responsible for the initial proceedings of
an application after it is received and registered such as deciding on the admissibility of
complaints as well as giving an opinion on the merits trying to reach a friendly
settlement of disputes between the parties and finding the facts The Commission was to
conclude the stage of merits with a report concerning the facts and an opinion as to
whether the facts found caused a breach of the Convention The operations of the
Commission at this stage could not be described as lsquocourt-functionsrsquo rather it could be
considered as an inquiry work outcome of which was not binding upon the relevant
contracting state15
The final decisions on the cases which were not resolved through friendly settlement
were reserved to the Court or the Committee of Ministers If the contracting state had
accepted the Courtrsquos jurisdiction the case could be referred to the Court within 3
months following the transmission of the Commissionrsquos report to the Committee As
indicated before the recognition of the Courtrsquos jurisdiction was not obligatory lsquobut
subject to a declaration by the contracting statersquo16
If neither party (the Commission or
the respondent state or the applicant) referred the case to the Court then the Committee
decided whether the violation occurred or not If there was a violation the Committee
indicated the measures which should be taken by the state including those of
compensation of the victim for the violation or changing the legal system that had
caused the violation at issue The disadvantages of this system were explained in details
by Rowe and Schlette as follows
The most obvious weakness of the old system was its extraordinary complexity three
organs worked together in a protracted multi-phase procedure There was considerable
overlap between the competencies of the various organs which meant that work was
14
RCAWhite C Ovey The European Convention on Human Rights (5 th
ed Oxford Uni Press 2010)
p10 15
L Mikaelsen supra n4p 15-16 16
İbid p16
14
often duplicated Nor was the interplay of the Commission Court and Committee the
only difficult matter the structure of the review system and the mixed judicial and
political character of the decision-making organs made the internal decision-making
process a complicated affair In sum there view system was ponderous expensive and
difficult for the complainant to understand There was a considerable risk that the
various organs would reach different decisions in substantially similar cases ndash as
happened on several occasions in decisions of the Commission and Court
A further weakness was the absence of any purely judicial mechanism for the review of
first instance Convention decisions [ie decisions of the Commission or the Committee
of Ministers]17
According to Greer recognition of the Courtrsquos judicial jurisdiction was originally
optional but politically non-optional18
Indeed by the 1990rsquos all of the member states
had already voluntarily accepted both the jurisdiction of the Court and the right of
individual application19
Eventually after the entering into force of Protocol 11 in
November 1998 the Commission and the Court was abolished to establish a new single
permanent three-tier court system with a compulsory jurisdiction-without any special
declaration by the contracting states- over all individual petitions to the Court20
that is
to say both the jurisdiction of the Court and the right to individual application has
become mandatory In following years after the adaptation of Protocol 14 a single
judge formation was created for admissibility decisions to increase the work speed of
the Court
Evolution of the Court in context of its structure and functions through these two
significant protocols to the Convention and the actual organization scheme of the Court
and procedures is examined in the following sections of this study
17
NRowe V Schlette lsquoThe Protection of Human Rights in Europe after the Eleventh Protocol to the
ECHRrsquo 23 European Law Review 3 (1998) p3 at p15 18
SGreer lsquoWhat is Wrong with the European Convention Human Rightsrsquo 30(3) Human Rights
Quarterly (2008) p680 at pp682-683 19
Janis Kay Bradley supra n9 p21 20
L Caflish lsquoThe Reform of the European Court of Human Rights Protocol 14 and Beyondrsquo 6(2)
Human Rights Law Review (2006) p 403 at p 403
15
III Right to Individual Application A Victim or a Criminal
Just a short glimpse back to first emerging and then development process of the right of
individual application under the Convention system can easily show that it has been
always in the centre of the fiery debates on the lsquofuturersquo of the Convention machinery
since to date and seem like will be in the following days
In the very early days during preparatory negotiations of the Convention when the
inclusion of the right of individual application was suggested by the Legal Committee
of the Council it was objected by some of the contracting parties arguing that lsquogreat
amount of applications made by individuals at the thought of a violation of his rights
under the convention would obstruct proper and efficient operation of the Court 21
Furthermore judicial enforcement of human rights was regarded unnecessary since
there were existed effective legislative and executive branches of government
safeguarding fundamental freedoms22
For example an announcement of a
representative of the Netherlands in 1959 about recognition of individual petition right
follows as ldquo hellip it was thought that the procedure for individual petition was
cumbersome and costly and finally it was pointed out that the right of individual
petition would have far reaching repercussions upon our legal systemrdquo23
On the other hand supporters of the idea of an individual right of application to the
Strasbourg institutions pointed out the essence of such a right for ldquoestablishment of the
dignity of the individual human spirit and to prevent injusticerdquo24
At the end of the negotiations when the Convention was signed in 1950 both the right
to individual application and the jurisdiction of the Court were optional as indicated
previously
Later developments in the European human rights system over the years have affected
the right of individual application in particular protocol 11 which has amended the
21
Council of Europe Collected Edition of the Travaux Preparatories of the European Convention on
Human Rights ( BrillampNijhoff 1975 ) paras 228-34 ( hereinafter Travaux Preparatories ) (as cited in
JanisKayBradley supra n9p15 ) 22
JFrowein lsquoEuropean Integration Through Fundamental Rightsrsquo18 Michigan Journalof Law Reform
(1984) p5 at p7 ( as cited in JanisKayBradleysupra n9 p19 ) 23
Second Chamber of the States General Preliminary Report of the Budget Commitee for Foreign
Affairs Session 1959 Docno 5359 ( as cited in Janis Kay Bradley supra n9 p20) 24
Janis Kay Bradley supra n 9 p17
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
10
THE RIGHT OF INDIVIDUAL APPLICATION UNDER
THE EUROPEAN CONVENTION ON HUMAN RIGHTS
I INTRODUCTION
The European human rights protection system is considered to be the most extensive
and effective regime designed for the protection and promotion of human rights
throughout the world First of all it can be distinguished from the other international
instruments by its far more developed control system established under the European
Convention for the Protection of Human Rights and Fundamental Freedoms1 (the
Convention) In particular the individual right of application to the European Court of
Human Rights is seen as the cornerstone of the European Human Rights Regime
The Convention was adopted by the Council of Europe (the Council) which was
founded by ten countries2 in 1949 for the purpose of achieving greater unity between
member states through the protection of fundamental freedoms and human rights in the
aftermath of the Second World War3 Adaptation of a human rights convention for
Europe was declared as a primarily task just after the first session of the Council in
August 19494 After the negotiations the Convention the first regional human rights
protection instrument containing definitions mutual obligations with an enforcement
and control mechanism was signed in November 1950
Since its entry into force in 1953 the number of contracting parties to the Convention
has increased so rapidly specially after the fall of communism in Central and Eastern
Europe Until now 47 member states ratified the Convention which means almost 800
million people are safeguarded by the Convention 5
1 Council of Europe European Convention for the Protection of Human Rights and Fundamental
Freedoms as amended by Protocols Nos 11 and 14 4 November 1950 ETS 5 available at
httpwwwrefworldorgdocid3ae6b3b04html [accessed 12 September 2013] 2 Those 10 countries are Belgium Denmark France Ireland ItalyLuxembourgthe
NetherlandsNorwaySweden and the United Kingdom 3 Council of Europe Statue of the Council of Europe 3 August 1949 CETS 1 available at
httpconventionscoeintTreatyCommunQueVoulezVousaspNT=001ampCM=1ampCL=ENG [accessed
12 September 2013] 4 LMikaelsen European Protection on Human Rights The Practice and Procedure of the European
Commission of Human Rights on the Admissibility of Applications from Individuals and States ( Sijthhoff
amp Noordhoff Int Publishers BV1980 ) p11 5 DHarris MOrsquoBoyle EBates CBuckley Law of the European Convention on Human Rights ( 2
nd
edn Oxford University Press2009) p2
11
The contracting parties have an obligation to secure and ensure the rights and freedoms
set out in the Convention to everyone within their jurisdiction pursuant to Article 1 of
the Convention The Convention mainly includes civil and political rights as the
economic and social rights are protected by another instrument of the Council namely
the European Social Charter
The Convention does not only contain a list of substantive rights but it also introduces a
remarkable enforcement system in order to lsquobring lifersquo to those rights within Therefore
the Convention is far more than just a list of some essential rights its protection system
enabling individuals as well as states to make complaints to the European Court of
Human Rights (the Court) against contracting states
Two instruments were created in order to strengthen of the international protection of
human rights the right to individual application enabling those individual victims who
claim that their fundamental human rights and freedoms set forth in the Convention
have been violated to submit a complaint to the Court6 and interstate applications which
are brought by one of the contracting states against the other contracting state alleging a
violation of the Convention rights7 The essence of such an enforcement system was
stated in the Explanatory Report to Protocol No 9 as ldquothe situation whereby the
individual is granted rights but not given the possibility to exploit fully the control
machinery provided for enforcing them could today be regarded as inconsistent with
the spirit of the Convention not to mention compatibility with domestic legal
procedures in state partiesrdquo 8 This complaint mechanism based on an individualized
perspective where every victim of human rights violations of the Convention may seek
a judgment on the dispute and where appropriate obtain some form of individual redress
from the European Court
6 Article 34 of the Convention concerning individual applications reads as followsrdquoThe Court may
receive applications from any person non-governmental organisation or group of individuals claiming to
be the victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in any way the
effective exercise of this right 7 Article 35 of the Convention concerning interstate cases reads as follows ldquoAny High Contracting Party
may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto
by another High Contracting Partyrdquo 8
Council of Europe Explanatory Report to Protocol No 9 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms 6 November 1990 ETS 140 at para 12 available at
httpconventionscoeintTreatyENReportsHtml140htm [accessed 2 October 2013]
12
However in the first 50 years of the Convention between November 1953 until 1998
these two remarkable features the right to individual application and the judicial
jurisdiction of the Court ie to hear and try cases already reported upon the European
Commission of Human Rights were optional not compulsory for the contracting states9
Hence in the early stages of the Convention system individuals had no locus standi in
the Court and the contracting states were free to decide whether or not to accept (I) the
right of individual application and (II) the jurisdiction of the Court 10
Over time the right of application turned out to be a lsquoreal right of actionrdquo11
but the
evolution has never been easy since the role of this right under the European system has
been debated for so long both within the Court itself and among the scholars
Ten years later after the entry into force of Protocol 1112
on 1 November 1998 a need
has arisen to promote a new reform of the system so that the Court can cope with the
excessive case load stemming from the rapid enlargement of the Council of Europe and
the general rise in the number of applications to the Court After a long preparatory
period Council of Europe agreed on a final proposal namely Protocol No 1413
which
aroused a latent conflict between two contradictory views concerning the main purpose
of the individual complaints mechanism set by the Convention
Following section summarised the previous enforcement system which was abolished
by Protocol No11 in 1998
II The lsquoOldrsquo System of Enforcement
In fact the enforcement system operated through part time monitoring institutions
namely the European Commission of Human Rights (the Commission) the Court and
9 MJanis RKay ABradley European Human Rights Law Text and Materials (3
rd edn Oxford
University Press 2008 ) p19 10
P Sardaro rsquoIndividual Complaintsrsquo in PLemmens amp WVandenhole (eds) Protocol No14 and the
Reform of the European Court of Human Rights ( Oxford Hart Publishing 2005) pp45-67 at p47 11
Ibid 12
Council of Europe Protocol 11 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Restructuring the Control Machinery Established Thereby 11 May 1994 ETS
155 available at httpwwwrefworldorgdocid42ef8c812html [accessed 3 October 2013] 13
Council of Europe Protocol 14 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Amending the Control System of the Convention 13 May 2004 CETS
194 available at httpwwwrefworldorgdocid42ef8d0b4html [accessed 3 October 2013]
13
the Committee of Ministers (the Committee) until the creation of a single full time
court in November 1998 under Protocol 11 of the Convention
According to this initial supervisory system the Commission was entitled to receive
complaints both from the contracting states and the individuals against the other
contracting states about violations of the human rights protected by the Convention and
the relevant Protocols14
The Commission was responsible for the initial proceedings of
an application after it is received and registered such as deciding on the admissibility of
complaints as well as giving an opinion on the merits trying to reach a friendly
settlement of disputes between the parties and finding the facts The Commission was to
conclude the stage of merits with a report concerning the facts and an opinion as to
whether the facts found caused a breach of the Convention The operations of the
Commission at this stage could not be described as lsquocourt-functionsrsquo rather it could be
considered as an inquiry work outcome of which was not binding upon the relevant
contracting state15
The final decisions on the cases which were not resolved through friendly settlement
were reserved to the Court or the Committee of Ministers If the contracting state had
accepted the Courtrsquos jurisdiction the case could be referred to the Court within 3
months following the transmission of the Commissionrsquos report to the Committee As
indicated before the recognition of the Courtrsquos jurisdiction was not obligatory lsquobut
subject to a declaration by the contracting statersquo16
If neither party (the Commission or
the respondent state or the applicant) referred the case to the Court then the Committee
decided whether the violation occurred or not If there was a violation the Committee
indicated the measures which should be taken by the state including those of
compensation of the victim for the violation or changing the legal system that had
caused the violation at issue The disadvantages of this system were explained in details
by Rowe and Schlette as follows
The most obvious weakness of the old system was its extraordinary complexity three
organs worked together in a protracted multi-phase procedure There was considerable
overlap between the competencies of the various organs which meant that work was
14
RCAWhite C Ovey The European Convention on Human Rights (5 th
ed Oxford Uni Press 2010)
p10 15
L Mikaelsen supra n4p 15-16 16
İbid p16
14
often duplicated Nor was the interplay of the Commission Court and Committee the
only difficult matter the structure of the review system and the mixed judicial and
political character of the decision-making organs made the internal decision-making
process a complicated affair In sum there view system was ponderous expensive and
difficult for the complainant to understand There was a considerable risk that the
various organs would reach different decisions in substantially similar cases ndash as
happened on several occasions in decisions of the Commission and Court
A further weakness was the absence of any purely judicial mechanism for the review of
first instance Convention decisions [ie decisions of the Commission or the Committee
of Ministers]17
According to Greer recognition of the Courtrsquos judicial jurisdiction was originally
optional but politically non-optional18
Indeed by the 1990rsquos all of the member states
had already voluntarily accepted both the jurisdiction of the Court and the right of
individual application19
Eventually after the entering into force of Protocol 11 in
November 1998 the Commission and the Court was abolished to establish a new single
permanent three-tier court system with a compulsory jurisdiction-without any special
declaration by the contracting states- over all individual petitions to the Court20
that is
to say both the jurisdiction of the Court and the right to individual application has
become mandatory In following years after the adaptation of Protocol 14 a single
judge formation was created for admissibility decisions to increase the work speed of
the Court
Evolution of the Court in context of its structure and functions through these two
significant protocols to the Convention and the actual organization scheme of the Court
and procedures is examined in the following sections of this study
17
NRowe V Schlette lsquoThe Protection of Human Rights in Europe after the Eleventh Protocol to the
ECHRrsquo 23 European Law Review 3 (1998) p3 at p15 18
SGreer lsquoWhat is Wrong with the European Convention Human Rightsrsquo 30(3) Human Rights
Quarterly (2008) p680 at pp682-683 19
Janis Kay Bradley supra n9 p21 20
L Caflish lsquoThe Reform of the European Court of Human Rights Protocol 14 and Beyondrsquo 6(2)
Human Rights Law Review (2006) p 403 at p 403
15
III Right to Individual Application A Victim or a Criminal
Just a short glimpse back to first emerging and then development process of the right of
individual application under the Convention system can easily show that it has been
always in the centre of the fiery debates on the lsquofuturersquo of the Convention machinery
since to date and seem like will be in the following days
In the very early days during preparatory negotiations of the Convention when the
inclusion of the right of individual application was suggested by the Legal Committee
of the Council it was objected by some of the contracting parties arguing that lsquogreat
amount of applications made by individuals at the thought of a violation of his rights
under the convention would obstruct proper and efficient operation of the Court 21
Furthermore judicial enforcement of human rights was regarded unnecessary since
there were existed effective legislative and executive branches of government
safeguarding fundamental freedoms22
For example an announcement of a
representative of the Netherlands in 1959 about recognition of individual petition right
follows as ldquo hellip it was thought that the procedure for individual petition was
cumbersome and costly and finally it was pointed out that the right of individual
petition would have far reaching repercussions upon our legal systemrdquo23
On the other hand supporters of the idea of an individual right of application to the
Strasbourg institutions pointed out the essence of such a right for ldquoestablishment of the
dignity of the individual human spirit and to prevent injusticerdquo24
At the end of the negotiations when the Convention was signed in 1950 both the right
to individual application and the jurisdiction of the Court were optional as indicated
previously
Later developments in the European human rights system over the years have affected
the right of individual application in particular protocol 11 which has amended the
21
Council of Europe Collected Edition of the Travaux Preparatories of the European Convention on
Human Rights ( BrillampNijhoff 1975 ) paras 228-34 ( hereinafter Travaux Preparatories ) (as cited in
JanisKayBradley supra n9p15 ) 22
JFrowein lsquoEuropean Integration Through Fundamental Rightsrsquo18 Michigan Journalof Law Reform
(1984) p5 at p7 ( as cited in JanisKayBradleysupra n9 p19 ) 23
Second Chamber of the States General Preliminary Report of the Budget Commitee for Foreign
Affairs Session 1959 Docno 5359 ( as cited in Janis Kay Bradley supra n9 p20) 24
Janis Kay Bradley supra n 9 p17
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
11
The contracting parties have an obligation to secure and ensure the rights and freedoms
set out in the Convention to everyone within their jurisdiction pursuant to Article 1 of
the Convention The Convention mainly includes civil and political rights as the
economic and social rights are protected by another instrument of the Council namely
the European Social Charter
The Convention does not only contain a list of substantive rights but it also introduces a
remarkable enforcement system in order to lsquobring lifersquo to those rights within Therefore
the Convention is far more than just a list of some essential rights its protection system
enabling individuals as well as states to make complaints to the European Court of
Human Rights (the Court) against contracting states
Two instruments were created in order to strengthen of the international protection of
human rights the right to individual application enabling those individual victims who
claim that their fundamental human rights and freedoms set forth in the Convention
have been violated to submit a complaint to the Court6 and interstate applications which
are brought by one of the contracting states against the other contracting state alleging a
violation of the Convention rights7 The essence of such an enforcement system was
stated in the Explanatory Report to Protocol No 9 as ldquothe situation whereby the
individual is granted rights but not given the possibility to exploit fully the control
machinery provided for enforcing them could today be regarded as inconsistent with
the spirit of the Convention not to mention compatibility with domestic legal
procedures in state partiesrdquo 8 This complaint mechanism based on an individualized
perspective where every victim of human rights violations of the Convention may seek
a judgment on the dispute and where appropriate obtain some form of individual redress
from the European Court
6 Article 34 of the Convention concerning individual applications reads as followsrdquoThe Court may
receive applications from any person non-governmental organisation or group of individuals claiming to
be the victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in any way the
effective exercise of this right 7 Article 35 of the Convention concerning interstate cases reads as follows ldquoAny High Contracting Party
may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto
by another High Contracting Partyrdquo 8
Council of Europe Explanatory Report to Protocol No 9 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms 6 November 1990 ETS 140 at para 12 available at
httpconventionscoeintTreatyENReportsHtml140htm [accessed 2 October 2013]
12
However in the first 50 years of the Convention between November 1953 until 1998
these two remarkable features the right to individual application and the judicial
jurisdiction of the Court ie to hear and try cases already reported upon the European
Commission of Human Rights were optional not compulsory for the contracting states9
Hence in the early stages of the Convention system individuals had no locus standi in
the Court and the contracting states were free to decide whether or not to accept (I) the
right of individual application and (II) the jurisdiction of the Court 10
Over time the right of application turned out to be a lsquoreal right of actionrdquo11
but the
evolution has never been easy since the role of this right under the European system has
been debated for so long both within the Court itself and among the scholars
Ten years later after the entry into force of Protocol 1112
on 1 November 1998 a need
has arisen to promote a new reform of the system so that the Court can cope with the
excessive case load stemming from the rapid enlargement of the Council of Europe and
the general rise in the number of applications to the Court After a long preparatory
period Council of Europe agreed on a final proposal namely Protocol No 1413
which
aroused a latent conflict between two contradictory views concerning the main purpose
of the individual complaints mechanism set by the Convention
Following section summarised the previous enforcement system which was abolished
by Protocol No11 in 1998
II The lsquoOldrsquo System of Enforcement
In fact the enforcement system operated through part time monitoring institutions
namely the European Commission of Human Rights (the Commission) the Court and
9 MJanis RKay ABradley European Human Rights Law Text and Materials (3
rd edn Oxford
University Press 2008 ) p19 10
P Sardaro rsquoIndividual Complaintsrsquo in PLemmens amp WVandenhole (eds) Protocol No14 and the
Reform of the European Court of Human Rights ( Oxford Hart Publishing 2005) pp45-67 at p47 11
Ibid 12
Council of Europe Protocol 11 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Restructuring the Control Machinery Established Thereby 11 May 1994 ETS
155 available at httpwwwrefworldorgdocid42ef8c812html [accessed 3 October 2013] 13
Council of Europe Protocol 14 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Amending the Control System of the Convention 13 May 2004 CETS
194 available at httpwwwrefworldorgdocid42ef8d0b4html [accessed 3 October 2013]
13
the Committee of Ministers (the Committee) until the creation of a single full time
court in November 1998 under Protocol 11 of the Convention
According to this initial supervisory system the Commission was entitled to receive
complaints both from the contracting states and the individuals against the other
contracting states about violations of the human rights protected by the Convention and
the relevant Protocols14
The Commission was responsible for the initial proceedings of
an application after it is received and registered such as deciding on the admissibility of
complaints as well as giving an opinion on the merits trying to reach a friendly
settlement of disputes between the parties and finding the facts The Commission was to
conclude the stage of merits with a report concerning the facts and an opinion as to
whether the facts found caused a breach of the Convention The operations of the
Commission at this stage could not be described as lsquocourt-functionsrsquo rather it could be
considered as an inquiry work outcome of which was not binding upon the relevant
contracting state15
The final decisions on the cases which were not resolved through friendly settlement
were reserved to the Court or the Committee of Ministers If the contracting state had
accepted the Courtrsquos jurisdiction the case could be referred to the Court within 3
months following the transmission of the Commissionrsquos report to the Committee As
indicated before the recognition of the Courtrsquos jurisdiction was not obligatory lsquobut
subject to a declaration by the contracting statersquo16
If neither party (the Commission or
the respondent state or the applicant) referred the case to the Court then the Committee
decided whether the violation occurred or not If there was a violation the Committee
indicated the measures which should be taken by the state including those of
compensation of the victim for the violation or changing the legal system that had
caused the violation at issue The disadvantages of this system were explained in details
by Rowe and Schlette as follows
The most obvious weakness of the old system was its extraordinary complexity three
organs worked together in a protracted multi-phase procedure There was considerable
overlap between the competencies of the various organs which meant that work was
14
RCAWhite C Ovey The European Convention on Human Rights (5 th
ed Oxford Uni Press 2010)
p10 15
L Mikaelsen supra n4p 15-16 16
İbid p16
14
often duplicated Nor was the interplay of the Commission Court and Committee the
only difficult matter the structure of the review system and the mixed judicial and
political character of the decision-making organs made the internal decision-making
process a complicated affair In sum there view system was ponderous expensive and
difficult for the complainant to understand There was a considerable risk that the
various organs would reach different decisions in substantially similar cases ndash as
happened on several occasions in decisions of the Commission and Court
A further weakness was the absence of any purely judicial mechanism for the review of
first instance Convention decisions [ie decisions of the Commission or the Committee
of Ministers]17
According to Greer recognition of the Courtrsquos judicial jurisdiction was originally
optional but politically non-optional18
Indeed by the 1990rsquos all of the member states
had already voluntarily accepted both the jurisdiction of the Court and the right of
individual application19
Eventually after the entering into force of Protocol 11 in
November 1998 the Commission and the Court was abolished to establish a new single
permanent three-tier court system with a compulsory jurisdiction-without any special
declaration by the contracting states- over all individual petitions to the Court20
that is
to say both the jurisdiction of the Court and the right to individual application has
become mandatory In following years after the adaptation of Protocol 14 a single
judge formation was created for admissibility decisions to increase the work speed of
the Court
Evolution of the Court in context of its structure and functions through these two
significant protocols to the Convention and the actual organization scheme of the Court
and procedures is examined in the following sections of this study
17
NRowe V Schlette lsquoThe Protection of Human Rights in Europe after the Eleventh Protocol to the
ECHRrsquo 23 European Law Review 3 (1998) p3 at p15 18
SGreer lsquoWhat is Wrong with the European Convention Human Rightsrsquo 30(3) Human Rights
Quarterly (2008) p680 at pp682-683 19
Janis Kay Bradley supra n9 p21 20
L Caflish lsquoThe Reform of the European Court of Human Rights Protocol 14 and Beyondrsquo 6(2)
Human Rights Law Review (2006) p 403 at p 403
15
III Right to Individual Application A Victim or a Criminal
Just a short glimpse back to first emerging and then development process of the right of
individual application under the Convention system can easily show that it has been
always in the centre of the fiery debates on the lsquofuturersquo of the Convention machinery
since to date and seem like will be in the following days
In the very early days during preparatory negotiations of the Convention when the
inclusion of the right of individual application was suggested by the Legal Committee
of the Council it was objected by some of the contracting parties arguing that lsquogreat
amount of applications made by individuals at the thought of a violation of his rights
under the convention would obstruct proper and efficient operation of the Court 21
Furthermore judicial enforcement of human rights was regarded unnecessary since
there were existed effective legislative and executive branches of government
safeguarding fundamental freedoms22
For example an announcement of a
representative of the Netherlands in 1959 about recognition of individual petition right
follows as ldquo hellip it was thought that the procedure for individual petition was
cumbersome and costly and finally it was pointed out that the right of individual
petition would have far reaching repercussions upon our legal systemrdquo23
On the other hand supporters of the idea of an individual right of application to the
Strasbourg institutions pointed out the essence of such a right for ldquoestablishment of the
dignity of the individual human spirit and to prevent injusticerdquo24
At the end of the negotiations when the Convention was signed in 1950 both the right
to individual application and the jurisdiction of the Court were optional as indicated
previously
Later developments in the European human rights system over the years have affected
the right of individual application in particular protocol 11 which has amended the
21
Council of Europe Collected Edition of the Travaux Preparatories of the European Convention on
Human Rights ( BrillampNijhoff 1975 ) paras 228-34 ( hereinafter Travaux Preparatories ) (as cited in
JanisKayBradley supra n9p15 ) 22
JFrowein lsquoEuropean Integration Through Fundamental Rightsrsquo18 Michigan Journalof Law Reform
(1984) p5 at p7 ( as cited in JanisKayBradleysupra n9 p19 ) 23
Second Chamber of the States General Preliminary Report of the Budget Commitee for Foreign
Affairs Session 1959 Docno 5359 ( as cited in Janis Kay Bradley supra n9 p20) 24
Janis Kay Bradley supra n 9 p17
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
12
However in the first 50 years of the Convention between November 1953 until 1998
these two remarkable features the right to individual application and the judicial
jurisdiction of the Court ie to hear and try cases already reported upon the European
Commission of Human Rights were optional not compulsory for the contracting states9
Hence in the early stages of the Convention system individuals had no locus standi in
the Court and the contracting states were free to decide whether or not to accept (I) the
right of individual application and (II) the jurisdiction of the Court 10
Over time the right of application turned out to be a lsquoreal right of actionrdquo11
but the
evolution has never been easy since the role of this right under the European system has
been debated for so long both within the Court itself and among the scholars
Ten years later after the entry into force of Protocol 1112
on 1 November 1998 a need
has arisen to promote a new reform of the system so that the Court can cope with the
excessive case load stemming from the rapid enlargement of the Council of Europe and
the general rise in the number of applications to the Court After a long preparatory
period Council of Europe agreed on a final proposal namely Protocol No 1413
which
aroused a latent conflict between two contradictory views concerning the main purpose
of the individual complaints mechanism set by the Convention
Following section summarised the previous enforcement system which was abolished
by Protocol No11 in 1998
II The lsquoOldrsquo System of Enforcement
In fact the enforcement system operated through part time monitoring institutions
namely the European Commission of Human Rights (the Commission) the Court and
9 MJanis RKay ABradley European Human Rights Law Text and Materials (3
rd edn Oxford
University Press 2008 ) p19 10
P Sardaro rsquoIndividual Complaintsrsquo in PLemmens amp WVandenhole (eds) Protocol No14 and the
Reform of the European Court of Human Rights ( Oxford Hart Publishing 2005) pp45-67 at p47 11
Ibid 12
Council of Europe Protocol 11 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Restructuring the Control Machinery Established Thereby 11 May 1994 ETS
155 available at httpwwwrefworldorgdocid42ef8c812html [accessed 3 October 2013] 13
Council of Europe Protocol 14 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms Amending the Control System of the Convention 13 May 2004 CETS
194 available at httpwwwrefworldorgdocid42ef8d0b4html [accessed 3 October 2013]
13
the Committee of Ministers (the Committee) until the creation of a single full time
court in November 1998 under Protocol 11 of the Convention
According to this initial supervisory system the Commission was entitled to receive
complaints both from the contracting states and the individuals against the other
contracting states about violations of the human rights protected by the Convention and
the relevant Protocols14
The Commission was responsible for the initial proceedings of
an application after it is received and registered such as deciding on the admissibility of
complaints as well as giving an opinion on the merits trying to reach a friendly
settlement of disputes between the parties and finding the facts The Commission was to
conclude the stage of merits with a report concerning the facts and an opinion as to
whether the facts found caused a breach of the Convention The operations of the
Commission at this stage could not be described as lsquocourt-functionsrsquo rather it could be
considered as an inquiry work outcome of which was not binding upon the relevant
contracting state15
The final decisions on the cases which were not resolved through friendly settlement
were reserved to the Court or the Committee of Ministers If the contracting state had
accepted the Courtrsquos jurisdiction the case could be referred to the Court within 3
months following the transmission of the Commissionrsquos report to the Committee As
indicated before the recognition of the Courtrsquos jurisdiction was not obligatory lsquobut
subject to a declaration by the contracting statersquo16
If neither party (the Commission or
the respondent state or the applicant) referred the case to the Court then the Committee
decided whether the violation occurred or not If there was a violation the Committee
indicated the measures which should be taken by the state including those of
compensation of the victim for the violation or changing the legal system that had
caused the violation at issue The disadvantages of this system were explained in details
by Rowe and Schlette as follows
The most obvious weakness of the old system was its extraordinary complexity three
organs worked together in a protracted multi-phase procedure There was considerable
overlap between the competencies of the various organs which meant that work was
14
RCAWhite C Ovey The European Convention on Human Rights (5 th
ed Oxford Uni Press 2010)
p10 15
L Mikaelsen supra n4p 15-16 16
İbid p16
14
often duplicated Nor was the interplay of the Commission Court and Committee the
only difficult matter the structure of the review system and the mixed judicial and
political character of the decision-making organs made the internal decision-making
process a complicated affair In sum there view system was ponderous expensive and
difficult for the complainant to understand There was a considerable risk that the
various organs would reach different decisions in substantially similar cases ndash as
happened on several occasions in decisions of the Commission and Court
A further weakness was the absence of any purely judicial mechanism for the review of
first instance Convention decisions [ie decisions of the Commission or the Committee
of Ministers]17
According to Greer recognition of the Courtrsquos judicial jurisdiction was originally
optional but politically non-optional18
Indeed by the 1990rsquos all of the member states
had already voluntarily accepted both the jurisdiction of the Court and the right of
individual application19
Eventually after the entering into force of Protocol 11 in
November 1998 the Commission and the Court was abolished to establish a new single
permanent three-tier court system with a compulsory jurisdiction-without any special
declaration by the contracting states- over all individual petitions to the Court20
that is
to say both the jurisdiction of the Court and the right to individual application has
become mandatory In following years after the adaptation of Protocol 14 a single
judge formation was created for admissibility decisions to increase the work speed of
the Court
Evolution of the Court in context of its structure and functions through these two
significant protocols to the Convention and the actual organization scheme of the Court
and procedures is examined in the following sections of this study
17
NRowe V Schlette lsquoThe Protection of Human Rights in Europe after the Eleventh Protocol to the
ECHRrsquo 23 European Law Review 3 (1998) p3 at p15 18
SGreer lsquoWhat is Wrong with the European Convention Human Rightsrsquo 30(3) Human Rights
Quarterly (2008) p680 at pp682-683 19
Janis Kay Bradley supra n9 p21 20
L Caflish lsquoThe Reform of the European Court of Human Rights Protocol 14 and Beyondrsquo 6(2)
Human Rights Law Review (2006) p 403 at p 403
15
III Right to Individual Application A Victim or a Criminal
Just a short glimpse back to first emerging and then development process of the right of
individual application under the Convention system can easily show that it has been
always in the centre of the fiery debates on the lsquofuturersquo of the Convention machinery
since to date and seem like will be in the following days
In the very early days during preparatory negotiations of the Convention when the
inclusion of the right of individual application was suggested by the Legal Committee
of the Council it was objected by some of the contracting parties arguing that lsquogreat
amount of applications made by individuals at the thought of a violation of his rights
under the convention would obstruct proper and efficient operation of the Court 21
Furthermore judicial enforcement of human rights was regarded unnecessary since
there were existed effective legislative and executive branches of government
safeguarding fundamental freedoms22
For example an announcement of a
representative of the Netherlands in 1959 about recognition of individual petition right
follows as ldquo hellip it was thought that the procedure for individual petition was
cumbersome and costly and finally it was pointed out that the right of individual
petition would have far reaching repercussions upon our legal systemrdquo23
On the other hand supporters of the idea of an individual right of application to the
Strasbourg institutions pointed out the essence of such a right for ldquoestablishment of the
dignity of the individual human spirit and to prevent injusticerdquo24
At the end of the negotiations when the Convention was signed in 1950 both the right
to individual application and the jurisdiction of the Court were optional as indicated
previously
Later developments in the European human rights system over the years have affected
the right of individual application in particular protocol 11 which has amended the
21
Council of Europe Collected Edition of the Travaux Preparatories of the European Convention on
Human Rights ( BrillampNijhoff 1975 ) paras 228-34 ( hereinafter Travaux Preparatories ) (as cited in
JanisKayBradley supra n9p15 ) 22
JFrowein lsquoEuropean Integration Through Fundamental Rightsrsquo18 Michigan Journalof Law Reform
(1984) p5 at p7 ( as cited in JanisKayBradleysupra n9 p19 ) 23
Second Chamber of the States General Preliminary Report of the Budget Commitee for Foreign
Affairs Session 1959 Docno 5359 ( as cited in Janis Kay Bradley supra n9 p20) 24
Janis Kay Bradley supra n 9 p17
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
13
the Committee of Ministers (the Committee) until the creation of a single full time
court in November 1998 under Protocol 11 of the Convention
According to this initial supervisory system the Commission was entitled to receive
complaints both from the contracting states and the individuals against the other
contracting states about violations of the human rights protected by the Convention and
the relevant Protocols14
The Commission was responsible for the initial proceedings of
an application after it is received and registered such as deciding on the admissibility of
complaints as well as giving an opinion on the merits trying to reach a friendly
settlement of disputes between the parties and finding the facts The Commission was to
conclude the stage of merits with a report concerning the facts and an opinion as to
whether the facts found caused a breach of the Convention The operations of the
Commission at this stage could not be described as lsquocourt-functionsrsquo rather it could be
considered as an inquiry work outcome of which was not binding upon the relevant
contracting state15
The final decisions on the cases which were not resolved through friendly settlement
were reserved to the Court or the Committee of Ministers If the contracting state had
accepted the Courtrsquos jurisdiction the case could be referred to the Court within 3
months following the transmission of the Commissionrsquos report to the Committee As
indicated before the recognition of the Courtrsquos jurisdiction was not obligatory lsquobut
subject to a declaration by the contracting statersquo16
If neither party (the Commission or
the respondent state or the applicant) referred the case to the Court then the Committee
decided whether the violation occurred or not If there was a violation the Committee
indicated the measures which should be taken by the state including those of
compensation of the victim for the violation or changing the legal system that had
caused the violation at issue The disadvantages of this system were explained in details
by Rowe and Schlette as follows
The most obvious weakness of the old system was its extraordinary complexity three
organs worked together in a protracted multi-phase procedure There was considerable
overlap between the competencies of the various organs which meant that work was
14
RCAWhite C Ovey The European Convention on Human Rights (5 th
ed Oxford Uni Press 2010)
p10 15
L Mikaelsen supra n4p 15-16 16
İbid p16
14
often duplicated Nor was the interplay of the Commission Court and Committee the
only difficult matter the structure of the review system and the mixed judicial and
political character of the decision-making organs made the internal decision-making
process a complicated affair In sum there view system was ponderous expensive and
difficult for the complainant to understand There was a considerable risk that the
various organs would reach different decisions in substantially similar cases ndash as
happened on several occasions in decisions of the Commission and Court
A further weakness was the absence of any purely judicial mechanism for the review of
first instance Convention decisions [ie decisions of the Commission or the Committee
of Ministers]17
According to Greer recognition of the Courtrsquos judicial jurisdiction was originally
optional but politically non-optional18
Indeed by the 1990rsquos all of the member states
had already voluntarily accepted both the jurisdiction of the Court and the right of
individual application19
Eventually after the entering into force of Protocol 11 in
November 1998 the Commission and the Court was abolished to establish a new single
permanent three-tier court system with a compulsory jurisdiction-without any special
declaration by the contracting states- over all individual petitions to the Court20
that is
to say both the jurisdiction of the Court and the right to individual application has
become mandatory In following years after the adaptation of Protocol 14 a single
judge formation was created for admissibility decisions to increase the work speed of
the Court
Evolution of the Court in context of its structure and functions through these two
significant protocols to the Convention and the actual organization scheme of the Court
and procedures is examined in the following sections of this study
17
NRowe V Schlette lsquoThe Protection of Human Rights in Europe after the Eleventh Protocol to the
ECHRrsquo 23 European Law Review 3 (1998) p3 at p15 18
SGreer lsquoWhat is Wrong with the European Convention Human Rightsrsquo 30(3) Human Rights
Quarterly (2008) p680 at pp682-683 19
Janis Kay Bradley supra n9 p21 20
L Caflish lsquoThe Reform of the European Court of Human Rights Protocol 14 and Beyondrsquo 6(2)
Human Rights Law Review (2006) p 403 at p 403
15
III Right to Individual Application A Victim or a Criminal
Just a short glimpse back to first emerging and then development process of the right of
individual application under the Convention system can easily show that it has been
always in the centre of the fiery debates on the lsquofuturersquo of the Convention machinery
since to date and seem like will be in the following days
In the very early days during preparatory negotiations of the Convention when the
inclusion of the right of individual application was suggested by the Legal Committee
of the Council it was objected by some of the contracting parties arguing that lsquogreat
amount of applications made by individuals at the thought of a violation of his rights
under the convention would obstruct proper and efficient operation of the Court 21
Furthermore judicial enforcement of human rights was regarded unnecessary since
there were existed effective legislative and executive branches of government
safeguarding fundamental freedoms22
For example an announcement of a
representative of the Netherlands in 1959 about recognition of individual petition right
follows as ldquo hellip it was thought that the procedure for individual petition was
cumbersome and costly and finally it was pointed out that the right of individual
petition would have far reaching repercussions upon our legal systemrdquo23
On the other hand supporters of the idea of an individual right of application to the
Strasbourg institutions pointed out the essence of such a right for ldquoestablishment of the
dignity of the individual human spirit and to prevent injusticerdquo24
At the end of the negotiations when the Convention was signed in 1950 both the right
to individual application and the jurisdiction of the Court were optional as indicated
previously
Later developments in the European human rights system over the years have affected
the right of individual application in particular protocol 11 which has amended the
21
Council of Europe Collected Edition of the Travaux Preparatories of the European Convention on
Human Rights ( BrillampNijhoff 1975 ) paras 228-34 ( hereinafter Travaux Preparatories ) (as cited in
JanisKayBradley supra n9p15 ) 22
JFrowein lsquoEuropean Integration Through Fundamental Rightsrsquo18 Michigan Journalof Law Reform
(1984) p5 at p7 ( as cited in JanisKayBradleysupra n9 p19 ) 23
Second Chamber of the States General Preliminary Report of the Budget Commitee for Foreign
Affairs Session 1959 Docno 5359 ( as cited in Janis Kay Bradley supra n9 p20) 24
Janis Kay Bradley supra n 9 p17
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
14
often duplicated Nor was the interplay of the Commission Court and Committee the
only difficult matter the structure of the review system and the mixed judicial and
political character of the decision-making organs made the internal decision-making
process a complicated affair In sum there view system was ponderous expensive and
difficult for the complainant to understand There was a considerable risk that the
various organs would reach different decisions in substantially similar cases ndash as
happened on several occasions in decisions of the Commission and Court
A further weakness was the absence of any purely judicial mechanism for the review of
first instance Convention decisions [ie decisions of the Commission or the Committee
of Ministers]17
According to Greer recognition of the Courtrsquos judicial jurisdiction was originally
optional but politically non-optional18
Indeed by the 1990rsquos all of the member states
had already voluntarily accepted both the jurisdiction of the Court and the right of
individual application19
Eventually after the entering into force of Protocol 11 in
November 1998 the Commission and the Court was abolished to establish a new single
permanent three-tier court system with a compulsory jurisdiction-without any special
declaration by the contracting states- over all individual petitions to the Court20
that is
to say both the jurisdiction of the Court and the right to individual application has
become mandatory In following years after the adaptation of Protocol 14 a single
judge formation was created for admissibility decisions to increase the work speed of
the Court
Evolution of the Court in context of its structure and functions through these two
significant protocols to the Convention and the actual organization scheme of the Court
and procedures is examined in the following sections of this study
17
NRowe V Schlette lsquoThe Protection of Human Rights in Europe after the Eleventh Protocol to the
ECHRrsquo 23 European Law Review 3 (1998) p3 at p15 18
SGreer lsquoWhat is Wrong with the European Convention Human Rightsrsquo 30(3) Human Rights
Quarterly (2008) p680 at pp682-683 19
Janis Kay Bradley supra n9 p21 20
L Caflish lsquoThe Reform of the European Court of Human Rights Protocol 14 and Beyondrsquo 6(2)
Human Rights Law Review (2006) p 403 at p 403
15
III Right to Individual Application A Victim or a Criminal
Just a short glimpse back to first emerging and then development process of the right of
individual application under the Convention system can easily show that it has been
always in the centre of the fiery debates on the lsquofuturersquo of the Convention machinery
since to date and seem like will be in the following days
In the very early days during preparatory negotiations of the Convention when the
inclusion of the right of individual application was suggested by the Legal Committee
of the Council it was objected by some of the contracting parties arguing that lsquogreat
amount of applications made by individuals at the thought of a violation of his rights
under the convention would obstruct proper and efficient operation of the Court 21
Furthermore judicial enforcement of human rights was regarded unnecessary since
there were existed effective legislative and executive branches of government
safeguarding fundamental freedoms22
For example an announcement of a
representative of the Netherlands in 1959 about recognition of individual petition right
follows as ldquo hellip it was thought that the procedure for individual petition was
cumbersome and costly and finally it was pointed out that the right of individual
petition would have far reaching repercussions upon our legal systemrdquo23
On the other hand supporters of the idea of an individual right of application to the
Strasbourg institutions pointed out the essence of such a right for ldquoestablishment of the
dignity of the individual human spirit and to prevent injusticerdquo24
At the end of the negotiations when the Convention was signed in 1950 both the right
to individual application and the jurisdiction of the Court were optional as indicated
previously
Later developments in the European human rights system over the years have affected
the right of individual application in particular protocol 11 which has amended the
21
Council of Europe Collected Edition of the Travaux Preparatories of the European Convention on
Human Rights ( BrillampNijhoff 1975 ) paras 228-34 ( hereinafter Travaux Preparatories ) (as cited in
JanisKayBradley supra n9p15 ) 22
JFrowein lsquoEuropean Integration Through Fundamental Rightsrsquo18 Michigan Journalof Law Reform
(1984) p5 at p7 ( as cited in JanisKayBradleysupra n9 p19 ) 23
Second Chamber of the States General Preliminary Report of the Budget Commitee for Foreign
Affairs Session 1959 Docno 5359 ( as cited in Janis Kay Bradley supra n9 p20) 24
Janis Kay Bradley supra n 9 p17
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
15
III Right to Individual Application A Victim or a Criminal
Just a short glimpse back to first emerging and then development process of the right of
individual application under the Convention system can easily show that it has been
always in the centre of the fiery debates on the lsquofuturersquo of the Convention machinery
since to date and seem like will be in the following days
In the very early days during preparatory negotiations of the Convention when the
inclusion of the right of individual application was suggested by the Legal Committee
of the Council it was objected by some of the contracting parties arguing that lsquogreat
amount of applications made by individuals at the thought of a violation of his rights
under the convention would obstruct proper and efficient operation of the Court 21
Furthermore judicial enforcement of human rights was regarded unnecessary since
there were existed effective legislative and executive branches of government
safeguarding fundamental freedoms22
For example an announcement of a
representative of the Netherlands in 1959 about recognition of individual petition right
follows as ldquo hellip it was thought that the procedure for individual petition was
cumbersome and costly and finally it was pointed out that the right of individual
petition would have far reaching repercussions upon our legal systemrdquo23
On the other hand supporters of the idea of an individual right of application to the
Strasbourg institutions pointed out the essence of such a right for ldquoestablishment of the
dignity of the individual human spirit and to prevent injusticerdquo24
At the end of the negotiations when the Convention was signed in 1950 both the right
to individual application and the jurisdiction of the Court were optional as indicated
previously
Later developments in the European human rights system over the years have affected
the right of individual application in particular protocol 11 which has amended the
21
Council of Europe Collected Edition of the Travaux Preparatories of the European Convention on
Human Rights ( BrillampNijhoff 1975 ) paras 228-34 ( hereinafter Travaux Preparatories ) (as cited in
JanisKayBradley supra n9p15 ) 22
JFrowein lsquoEuropean Integration Through Fundamental Rightsrsquo18 Michigan Journalof Law Reform
(1984) p5 at p7 ( as cited in JanisKayBradleysupra n9 p19 ) 23
Second Chamber of the States General Preliminary Report of the Budget Commitee for Foreign
Affairs Session 1959 Docno 5359 ( as cited in Janis Kay Bradley supra n9 p20) 24
Janis Kay Bradley supra n 9 p17
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
16
entire Strasbourg enforcement system radically Likewise the recognition of the Courtrsquos
jurisdiction the individual application right became compulsory for any state party to
the Convention
Therefore by the adaptation of Protocol 11 every victim of a human rights violation by
a contracting state of the Convention would be able to access to a judicial remedy to
obtain a redress for his compliant
Nevertheless as a result of rapidly increasing number of applications brought before the
Court by individuals and enlargement of the Council of Europe the backlog of cases
continued to grow expediently Therefore it was realised soon that Protocol 11 was
insufficient to cope with the case load crisis and thus there was a need for another
reform which came into existence with Protocol 1425
This reform process brought to
the surface long discussions concerning the main role of the Court whether the Courtrsquos
main function is to provide remedies for each deserving applicant or to promote
concurrence in the operation of public order of each member state establishing an
abstract constitutional model which contracting states should then imply in their own
internal constitutional systems According to Greer the original purpose of the
Convention is dealing with ldquocomplaints made to an independent judicial tribunal by
states against each other and not those made by individuals against governmentsrdquo and
furthermore he noted that providing individuals with redress is a task of national public
authorities not an international tribunal like the European Court26
On the other hand
according to the proponents of a full accession to the Court the right to individual
application is the hearth of the control system since most of the applications brought
before the Court are made by individuals the Court depends on these individual
complaints even for performing its constitutional mission In particular the new
admissibility requirement relating to the significance of disadvantage suffered by the
applicant introduced by Protocol 14 Article 12 strongly opposed by NGOrsquos some
25
YHaeck J Vande Lanotte rsquoDesperately Trying to Keep the Titanic Afloat The Reform Proposals
Concerning The European Convention On Human Rights After Protocol No 14 The Report Of The
Group Of Wise Persons And Some Further Proposalsrsquo 1 Inter-Amerıcan And European Human Rıghts
Journal (2008) p87 at p89
26 Greer supra n18 at p 682
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
17
governments some judges of the Court and the Parliamentary Assembly and some
judges of the Court27
The impact of Protocol 14 on the substance and extent of the right will be discussed in
the following chapter
IIII Subject of This Study
This study will examine the concept of right of individual application in the sense it has
acquired in the European system of Human Rights focusing on its substance purpose
formal requirements and practical outcome The right of application has two main
features First one is the direct accession to an international court by providing certain
formal admissibility requirements and secondly the possibility to obtain a legally
certain binding and effective judicial decision on the matter of the dispute and recovery
for the damages incurred through financial compensation or in some exceptional
circumstances through specific measures in kind to suspend a continuing violation28
Thus the first chapter introduces the right of individual application by means of its
purpose and scope second chapter deals with the admissibility criteria and the third
chapter deals with the resolution of dispute through several forms of decisions and
remedies obtained
27
HKeller AFischer DKuumlhne lsquoDebating the Future of the European Court of Human Rights after
Interlaken Conference Two Innovative Proposalsrdquo 21(4) The European Journal of International Law (
2011) p1025 at p 1038 28
Sardaro supra n10 at p 50
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
18
II THE RIGHT TO INDIVIDUAL APPLICATION
Any private individual may lodge an application before the Court against a member
state when the alleged breach took place within the jurisdiction of the state pursuant to
Article 34 This right is absolute and the states are under obligation not to hinder this
right particularly where there is a serious human rights violations thus to preserve the
practical effects of access to justice is an essential point29
Also it should be noted that
where the failure of taking measures in order to comply with the interim measures
indicated in the Courtrsquos decision according to Rule 39 of the Rule of Courts which can
be given by the Court in serious human rights violations 30
III Scope of the Right
As Sardore stated this right of action can be broken into three aspects31
- Direct accession to international judicial body under certain conditions and
requirements
- Delivery of a legitimate certain effective judgment
- Possibility to obtain a redress through monetary compensation for the damage
incurred and if appropriate specific measures to provide for suspending the
violation ldquoif it is still continuing when judgment is handed downrdquo
Therefore the right to application enables an individual to obtain a binding judicial
decision declaring the responsibility of the state for the breach of the Convention rights
through fair proceedings before the international court and to obtain a remedy to
compensate his damages incurred
29
Sardoro supra n 10 at p 49 30
Council of EuropeEuropean Court of Human Rights lsquoPractical Guide on Admissibility Criteria 2012rsquo
available at httpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_pointer
(accessed September 2013) 31
Sardoro supra n10 at p 49-50
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
19
IIII Protocol 14 and New Admissibility Criteria
The most remarkable change to reduce the caseload is a new admissibility criterion
added to Article 35 of the Convention allowing the Court to declare an individual
application inadmissible if the applicant has not suffered a significant disadvantage
ldquounless respect for the human rights as defined in the Convention and the Protocols
thereto requires an examination of the application on the merits and provided that no
case may be rejected on this ground which has not been duly considered by a domestic
tribunalrdquo Therefore according to the new criterion a well founded case may be rejected
and excluded from the control mechanism where the applicant has not suffered a
significant disadvantage
It is clear that the Court is granted broader power to choose cases for review as it can
decide that a case requires an examination even though the individual suffered no
significant disadvantage
Undoubtedly the concept of significant disadvantage will be concrete by the Courts
interpretation and application in practice as stated in the Explanatory report32
Is it really
appropriate to ground the inadmissibility of an application on ground of a disadvantage
According to some this means a restriction to the essence of the right in context of
victim status33
Specially nongovernmental institutions opposed to the new criterion
stating that it ldquowill give the ECHR too wide discretion to reject otherwise meritorious
cases and will also create real uncertainty amongst applicants and their advisers as to
the prospects of the success of their applications to the ECtHRrdquo Additionally the
Parliamentary Assembly described the new criterion as ldquovague subjective and liable to
do the applicant a serious injusticerdquo34
According to Sardaro the adopted criterion likely
to have a restrictive impact on the individualrsquos right to access to the Court but the real
scope of such restriction widely depends on the way the new requirement will be
applied in practice by the Court35
32
Council of Europe lsquoExplanatory Report to Protocol No 14 to the Convention for the Protection of
Human Rights and Fundamental Freedoms amending the control system of the Conventionrsquo CETS
No 194 at paras 79 and 84 available at httpconventionscoeintTreatyENReportsHtml194htm
(accessed September 2013) 33
Sardoro supra n10 p53 34
Parlimentary Assembly Opinion No 251 (2004) of 28 April 2004 on Draft Protocol No14 to the
Convention for the Protection of Human Rights and Fundametal Freedoms at para11 35
Sardaro supra n10 p 67
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
20
The Court has been applying new admissibility criterion for over two years According
to the Research Report on the new criterion published in June 2012 by Council of
Europe the criterion has applied to 26 complaints made under Article 6 and 13 of the
Convention and Article 1 of Protocol 1 Additionally the new criterion has been
considered but rejected by the Court in a further 16 cases36
Some of these cases are
examined in the following sections of this study
36
Council of EuropeEuropean Court of Human Rights lsquoResearch Report on The New Admissibility
Criterion under Article 353 of the Convention Case Law Principles Two Years onrsquo June 2012
available at httpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
[accessed 12 September 2013]
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
21
III THE HEARTH OF THE CONTROL SYSTEM THE EUROPEAN
COURT OF HUMAN RIGHTS
The organizational and functional structure of the Court has changed by the
amendments enshrined under Protocol 11 and Protocol 14 respectively This section
seeks to give a short review concerning the current structure and the procedures before
the Court
IIII Organization of the Court
The rules of the Convention related to the procedures before the Court are articulated in
details in a documentary called lsquoRules of Courtrsquo which is updated on a regular basis
according to the amendments made by the Plenary Court and published by the Registry
of the Court The Court made an important amendment in which it deals with cases
According to new Article 41 the most important and urgent cases will be given priority
in examination These cases are described as urgent and arising serious issues in respect
of human rights Chamber of the Court or the Court President can delegate from this
priority list when it is needed According to Buyse in practice ldquothis could mean that a
great number of cases without priority ( those in the lowest categories ) will remain on
the dockets virtually eternally unless the root causes of the Courtrsquos problems are
addressedrdquo He concludes with a comment that prioritising policy might turn into pick
and choose policy as some national constitutional courts apply since nonprimarily cases
may remain on the stack to be dealt with later indefinitely37
As a result the Court made
a choice to determine the applications in the first place which concern the worst human
rights violations or a wide spread systemic problem in first place
Protocol 14 created a single court formation to filter manifestly ill founded applications
and empowered the three-judge committee to decide on both the admissibility and the
merits of the case where solid case law existed concerning the underlying question in
37
A Buyse rsquoThe Courtrsquos New Priority Policyrsquo ECHR Blog November 2010 available at
httpechrblogblogspotcom201011courts-new-priority-policyhtml ( accessed September 2013)
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
22
the case38
Prior to Protocol 14 the committees were empowered to decide only on
admissibility and only by unanimity
The committees determine whether there exists already a well-established case law on a
given issue A judgement of a committee is final (Article 282 ECHR) In the absence of
settled case law on the matter concerned the Chambers or the Grand Chamber where
the case is relinquished it by the Chambers examines the case for a final judgement 39
The single judge can either declare the application inadmissible or strike it out If the
single judge considers that further examination is needed to decide whether the case is
inadmissible then he has to forward it to a committee or to a chamber (Article 273
ECHR )
According to Article 45 if the Committee of Ministers finds by a two-thirds majority
that a state is refusing to abide by a court judgement it can be referred back the Grand
Chamber for an infringement finding which then be referred back to the committee to
take action
IIIII Procedures before the Court Concerning Individual Applications
First of all any application made under the Article 34 ECHR is assigned to a section by
the president of the Court (Rules of Court Article 52)
The single judge declares the manifestly ill founded cases inadmissible without further
examination It should be noted that the single judge can only come to a decision on the
basis of simple and easily applicable rules40
If no decision has been taken which means
that there is a need for further examination to decide on the admissibility the single
judge refers the application to the committees or to the chambers
It should be noted that pursuant to the Article 202 of Protocol 14 the examination of
the lsquosignificant disadvantagersquo admissibility criterion was reserved to Grand Chamber
38
A Mowbray Cases and Materials on the European Convention on Human Rights ( 2nd
edn Oxford
University Press 2007 ) p 336 39
Ibid p19 40
PLemmens lsquoSingle Judge Formations Committees Chambers and Grand Chamberrsquo in P Lemmens
ampWVandenhole ed Protocol No14 and the Reform of the European Court of Human Rights ( Oxford
Hurt Publishing 2005 ) pp 31-42 at p34
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
23
and Chambers during the first two years following its entry into force (from 1 June 2010
until 31 May 2012) to ensure the establishment of a clear principles with regard to the
new criterion The single judge formations and the Committees have been able to
declare applications inadmissible under this criterion since 1 June 2012
According to Rules of Court Article 53 in accordance with Article 28 sect 1 (a) of the
Convention the three judge committees deal with well founded repetitive cases as
indicated previous section Protocol 14 introduces a new procedure before the
committees Compared to the ordinary adversarial proceedings before a Chamber it is
more simple and accelerated one ldquoin that the Court simply brings the case to the
respondent statersquos attention pointing out that it concerns an issue which is already the
subject of well-established case lawrdquo41
If the respondent party agrees with that position
the Court will be able to give its decision very rapidly On the other hand if the
respondent state raises an objection stating that the case at issue differs from the
applications which have resulted in the well-established case law in that case the
applicant has to be given the opportunity to response to the arguments of the state at
issue42
If no decision or judgment is adopted by the Committee it will then fall to the
Chamber to examine the case
The implementation of the new procedure aims at speeding up the proceedings and the
Courtrsquos effectiveness43
Where the applications comes before the Chamber it may declare the application
inadmissible and strike it out of the list or otherwise give its decision on the merits after
examining the observations and factual information documents submitted by the
parties Its decisions become final within the three months of the judgement unless it
has been referred to Grand Chamber (Rules of Court Art 52 )
The cases are referred to the Grand Chamber only in case of two exceptional situations
relinquishment of the jurisdiction by the Chamber on behalf of Grand Chamber or
referral of the case by the parties to the Grand Chamber If the parties request referral of
the case to the Grand Chamber within a period of three months from the date of delivery
41
Council of Europe Explanatory Report supra n 32 at para 69 42
Lemmens supra no40 at p38 43
Council of Europe Explanatory Report supra n 32 at para69
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
24
of the judgment of a Chamber a panel of judges of the Grand Chamber decides whether
or not the case should be referred to the Grand Chamber for a new consideration (
Rules of Court Art73 )
Also cases can be sent to the Grand Chamber when relinquished by a Chamber where
the case raises a serious question affecting the interpretation of the Convention or where
there is a risk of inconsistency with a previous judgment of the Court ( Rules of Court
Art 72)
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
25
IV PROCEEDINGS BEFORE THE COURT (I) DETERMINATION OF
APPLICATIONS
IVI Preliminary Remarks
Once an application is received and registered by the Court the first important stage of
the entire procedure before the Court for the protection of human rights starts To
decide whether the application can be accepted or not Only if an application can pass
this lsquofilteringrsquo stage it will be examined by the Court on the merits So what is this
threshold to be worth examining by the Court on the merits The conditions of
admissibility set forth in Article 34 and 35 of the Convention44
This chapter seeks to
introduce these conditions through the case law of the Court
Admissibility conditions can be divided into three groups (I) procedural conditions for
admissibility (II) conditions relating to the limits of Courtrsquos competence (III)
conditions relating to merits of the case45
44
Article 34
ldquoThe Court may receive applications from any person non governmental organization or group of
individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set
forth in the Convention or the Protocols thereto The High Contracting Parties undertake not to hinder in
any way the effective exercise of this rightrdquo
Article 35
ldquo1 The Court may only deal with the matter after all domestic remedies have been exhausted according
to the generally recognised rules of international law and within a period of six months from the date on
which the final decision was taken
2 The Court shall not deal with any application submitted under Article 34 that
a is anonymous or
b is substantially the same as a matter that has already been examined by the Court or has already been
submitted to another procedure of international investigation or settlement and contains no relevant new
information
3 The Court shall declare inadmissible any individual application submitted under Article 34 if it
considers that
a the application is incompatible with the provisions of the Convention or the Protocols thereto
manifestly illfounded or an abuse of the right of individual applicationor
b the applicant has not suffered a significant disadvantage unless respect for human rights as defined in
the Convention and the Protocols thereto requires an examination of the application on the merits and
provided that no case may be rejected on this ground which has not been duly considered by a domestic
tribunal
4 The Court shall reject any application which it considers inadmissible under this Article It may do so
at any stage of the proceedings
45
Practical Guide supra n30 p8
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
26
The Court may declare an application inadmissible at any stage of the proceedings
pursuant to Article 354 of the Convention46
At the early stage of the proceedings the
Court naturally examines its admissibility on the basis of Article 34 and 35 on its own
motion and rejects the application at this early stage if it is clearly inadmissible If the
application is declared admissible and communicated to the respondent state in order to
get its written observations on the application47
the Court generally deals with the
questions of admissibility where the respondent state raises any objections concerning
admissibility48
However admissibility conditions related to the competence of the
Court can be examined by the Court at any stage on its own motion no matter the
relevant respondent state has not raised any objection on that matter49
It should be
noted that although the six month rule is a more technical and procedural one the Court
can consider the issue of six month limit at any stage of the proceedings
On the other hand although the Court has the power to declare an application
inadmissible at any stage of the proceedings the relevant respondent states cannot raise
inadmissibility arguments at every stage of the proceedings States should assert their
claims for inadmissibility in their observations as required by the Rule of Courts Article
55 They are not able to put forward new admissibility arguments at the merits stage
unless new developments or further information come to light warranting re-
examination of the admissibility decision50
As regards the proceedings before the Grand Chamber the respondent state may raise
the issue of admissibility if it has already raised them before the Chamber or if the
Chamber considered the admissibility question on its own motion51
One should bear in mind in mind that admissibility decisions which are taken separately
are final and not subject to appeal52
yet if the admissibility and the merits are examined
46
Eg Sabri Gunes v Turkey no 2739606 judgment of 29 June 2012 at para28 ldquoThe Court points out
that in accordance with Article 35 sect 4 of the Convention it may ldquoat any stage of the proceedingsrdquo reject
an application which it considers inadmissible Thus even at the merits stage the Court may reconsider a
decision to declare an application admissible where it concludes that it should have been declared
inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Conventionrdquo 47
See Rule 542 (b) of Rules of Court 2012 at
httpwwwechrcoeintDocumentsRules_Court_ENGpdf ( accessed September 2012) 48
Harris OrsquoBoyleBatesBuckleysupra n5 p 758
49 Blecic v Croatia no 5953200 2006 Grand Chamber judgment of 08032006 at para69
50 PLeach Taking a Case to the European Court of Human Rights ( 3
rded OUP 2011 ) p125
51 Sabri Gunes v Turkey supra n 47 at paras 28-31
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
27
at same time in accordance with the Article 291 of Convention this joint judgement
can be referred to the Grand Chamber53
In accordance with the Articles 34 and 25 of the Convention this chapter will examine
admissibility criteria which an applicant must fulfil if the merits of his case are to be
examined by the Court When assessing an application brought before it the Court
initially recalls the admissibility criterion provided by article 34 of the Convention
according to which any application has to be lodged by an applicant who could claim to
be the victim of a violation of the Convention
According to the Convention the criteria which must be fulfilled by the applicants are
as follows
- Compatibility ratione personae
- Compatibility ratione loci
- Compatibility ratione temporis
- Compatibility ratione materiae
- Not abusing the right of individual application
- Exhaustion of Domestic Remedies
- Compatibility six month time limit
- Well founded applications
- To suffer a significant disadvantage
These criteria are explained in the following sections
IVII Who May Petition the Court
Article 34 of the Convention states that any individual group of individuals or
nongovernmental organizations who claim to be the victim of a violation of any one of
the rights set out in the Convention can lodge an application before the Court
52
Rules 52A-1 and 534 of the Rules of Court 2012 53
Rule 73 ibid
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
28
The Courtrsquos competence ratione personae has two aspects (I) who is competent to bring
a case to the Court and (II) against whom a case can be brought within the conventional
framework
Therefore any individual group of individuals or nongovernmental organization may
appeal to the Court claiming that he she is a lsquovictimrsquo of a violation of the Convention
and the related protocols by one of the member states of the Convention
Individual applicants may present their own case yet after the application has been sent
to the respondent state they should be legally represented 54
Under the Article 34 of the Convention any real person legal person group of persons
or nongovernmental organizations can petition to the Court regardless of civil status
situation or legal capacity55
The Convention does not contain any distinction relating to the notion of physical
person thus in theory Article 34 covers minors mentally ill persons or those who are
ldquodeclared incapable to manage their own affairsrdquo56
Also although the lsquovictimrsquo is
required to be within the jurisdiction of the state party which is charged with violating
the Convention it is not required to be a citizen of the one of the state parties to the
Convention
With regard to non - governmental organizations which fall within the scope of Article
34 interpreted in the decision of the Commission in 1974 dealt with applications lodged
by Austrian communes against Austria The commission stressed that as the communes
exercise public functions on behalf of the state they are ldquoclearly governmental
organizations as opposed to non -governmental organizationsrdquo 57
54
Registry of the European Court of Human Rights Annual Report 2011 of the European Court of
Human Rights Council of Europe para 21 at
httpwwwechrcoeintDocumentsAnnual_report_2011_ENGpdf published March 2012 ( accessed
September 2012) 55
Eg in the case of Zehentner v Austria where the applicant is a person lacking legal capacity without
the consent of her guardian ldquo () under Art 34 the Court may receive applications from any person
claiming to be victim of a violation by one of the High Contracting Parties of the rights set forth in the
Convention or the protocols thereto There is no obligation in general or for persons lacking legal
capacity in particular to be presented at the initial stage of the proceedingrdquo [ Zehentner v Austria no
2008202 judgment of 16072009 at para39 ] available at HUDOC
httpwwwechrcoeintechrenhudoc ( accessed AugustSeptember 2012) 56
Mikaelsensupra n 4 p74 57
Mikaelsensupra n4 p75
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
29
In Holy Monasteries v Greece in which the applicants are Greek monasteries the
government argued that the monasteries were not NGOs because they were a part of the
Greek Church which had a legal personality under public law playing a direct role in
public administration However the Court concluded that the applicant monasteries
were NGOs since they did not exercise governmental powers nor did they have
objectives related to public administration Furthermore they were not under the
supervision of the state accordingly ldquothey are entities distinct from the State of which
they are completely independentrdquo 58
On the other hand in Danderyds Kommun v Sweden the Court noted that a
municipality cannot be regarded as a NGO as they ldquoexercise public functions
notwithstanding the extent of their autonomy vis a vis the central organs of the Staterdquo
and ldquo its acts can engage the responsibility of the Swedish State under the
Conventionrdquo59
Hence in the worlds of Mowbray ldquo (hellip) it is clear that Court will not
allow disputes between public authorities at different levels of domestic governmental
structures to be litigated at Strasbourgrdquo 60
lsquoGroup of individualsrsquo is defined as ldquoan informal alliances usually temporary between
several individualsrdquo in the Practical Guide on Admissibility Criteria 61
For instance in
the lsquoBelgium Linguistic Casersquo 324 French citizens who were living in the Dutch region
of Belgium complained together in one application against the state of Belgium 62
There are no restrictions based on residence nationality or any other status but Article
34 set up an important requirement as regards individual applications According to this
requirement an individual lodging an application with the Court must claim to be the
victim of a violation of the Convention 63
As Fawcett pointed out that ldquo the word
victim entails the presence of some link between the violation and the claimant in other
58
Holy Monasteries v Greece No 1309287-1398488 judgment of 09121994 para 49 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57906 ( accessed September 2012) 59
Application no 5255999 decision of 07062011 at httpechrketsecomdoc5255999-en-
20010607view 60
AMowbray Cases and Materials on the European Convention on Human Rights ( OUP2007) p30
61 Practical Guide supra n30 p9
62 Case Relating to Certain Aspects of the Laws on the Use of languages in Education in Belgium v
Belgium Application no 147462 167762 169162 176963 199463 212664 judgment of
23071968 at httphudocechrcoeintsitesengpagessearchaspxi=001-57525
63 DGomienDHarris LZwaak Law and Practice of the European Convention on Human Rights and
the European Social Charter (Council of Europe 1996)p43
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
30
words an applicant cannot be heard to a complain of a violation to which he is a
lsquostrangerrsquordquo 64
In the light of the case law it can be observed that victim status is formulated by the
Court as lsquoto be affected directly in some way by some form of state action or inaction
(omission) complained ofrsquo 65
Therefore an individual can not submit a petition claiming that a particular legislative
or executive act or practice contravenes the Convention unless he or she can show that
they are affected in some way It should be noted that there is no requirement to show
damage66
In Jansen and Rasmussen v Denmark67
where the applicant complained that the
obligatory membership of a certain trade union in order to obtain his present job under a
closed shop agreement breached his negative rights under Article 11 He pointed out
that if he resigned his membership it would constitute a violation of the current
employment contract in the framework of Danish law which might result in immediate
termination of the employment with far-reaching economical consequences for him and
his family The government argued that the complaints were abstract in nature thus the
applicant could not claim to be potential victim either The Court acknowledged that ldquo
the Convention does not provide individuals with any actio popularis for the
interpretation of the Convention nor may it form the basis of a claim made in abstracto
that a law contravenes the Conventionrdquo In the instance case the Court rejected the
Governmentrsquos arguments that ldquothe applicantrsquos complaint is directly connected to his
current personal situationrdquo since the applicant is currently employed by an employer
requiring his membership of a certain trade union due to a closed shop agreement and in
case of resignation from this trade union in question this could end up immediate
dismissal of the applicant from his job according to Danish Law
64
JESFawcet The Application Of The European Convention On Human Rights (Oxford Clarendon
Press 1969) p282 as cited in Mikaelsensupra n4 p76 65
Eg In Monnat v Switzerland at paragraph 31 the Court notes that the word ldquovictimrdquo in the context of
Article 34 of the Convention refers to a person directly affected by the act or omission in issue or runs the
risk of being directly affected by it therefore it is not possible to claim to be a victim of an act within the
meaning of Art34 of the Convention without any legal effect Additionally at paragraph 33 it states that
ldquo an act that has only temporary legal effects may be sufficient for an applicant to be recognized as a
victim ( Monnat v Switzerland No7360401 judgment of 26092006 para 31 and 33 at
httphudocechrcoeintsitesengpagessearchaspxi=001-76947 66
Harris OrsquoBoyleBatesBuckleysupra n5 p790 67
Application no5262099 decision of 20032003 at httpechrketsecomdoc5262099-en-20030320
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
31
While the concept of victims has been applied very strictly by the Court however in
Karner v Austria the Court stated that this criterion cannot be applied in a rigid
mechanical and inflexible way taking into account that human right cases also have a
moral dimension 68
The Court on a case by case basis in order to give effective protection to human rights
admitted that one can claim to be a potential victim where there is risk or threat of being
directly affected by a particular measure69
or an indirect victim such as the close
relatives of the person who is directly affected by the situation in question
IVIII Indirect Victims
In Yasa v Turkey the applicant made a complaint on his behalf and on behalf of his
deceased uncle claiming that he had been seriously injured and his uncle was killed in
an army attack In its report the Commission stated that ldquo when complaining of the
killing of his uncle the applicant acts as a person who is himself affected and (hellip ) not
acts as his unclersquos representativerdquo Moreover the Delegate of the Commission pointed
out that ldquo if a relative wished to complain about a question as serious as the murder of
one of his close relations that ought to suffice to show that he felt personally concerned
by the incidentrdquo 70
The Court concluded that the applicant could legitimately claim to
be a victim of an act as tragic as the murder of his uncle71
On the other hand where the applicant acts as a representative of the direct victim the
question of ldquowhether the right concerned is eminently personal that cannot be
transferable or can be transferablerdquo would arise72
For example in Sanles v Spain the
applicant was the sister in law and legal heir of a man who had pleaded his right not to
have the state in question interfere with his decision to end his life in dignity before
domestic courts After his death the applicant lodge an application to the Court
claiming that the state interference in the form of prohibitions laid down in the criminal
68
Karner v Austria application no 4001698 judgment of 24102003 para25 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61263 ( accessed September 2012) 69
Harris OrsquoBoyle BatesBuckley supra n5 p792 70
Yasa v Turkey application no6319978471054 judgment of 02091998 para63 at
httphudocechrcoeintsitesengpagessearchaspxi=001-( accessed September 2012) 71
İbid at para66 72
Harris OrsquoBoyleBatesBuckley supra n5 p798
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
32
code on assisting an individual to end his life was unjustified The Court concluded that
this part of the application is incompatible ratione personae and declared the application
inadmissible on following grounds ldquo the complaints must be brought by or on behalf of
persons who claim to be victims of a violation of the Conventionrdquo Thus ldquo the
applicant may claim to have been very affected by the circumstances surrounding the
deathrdquo however the rights claimed by the applicant under the Convention belong to
the category of non transferable rights and eminently personal 73
Besides a person may claim he or she is directly affected as a result of a violation of the
rights of someone else 74
For example in Kurt v Turkey the application of a mother on
behalf of her disappeared son and on her own behalf was declared admissible She
claimed to be the victim of the violation of Article 3 and 13 on account of her sonrsquos
disappearance at the hands of the state authorities75
In sum it can be said that to be regarded as an indirect victim a link between the
alleged violation and the applicantrsquos valid personal interests should be established
IVIIII Potential Victims
The court may be competent to protect an applicant from the probable future violations
if the applicant can show that there is a real risk of being directly affected by the alleged
violation of the Convention 76
The case of Norris v Ireland concerned domestic legislation punishing homosexual
conduct between adults In this instant case the Court recognized the applicant as a
ldquopotential victimrdquo there up declared the application admissible in persona locus The
applicant in question was a homosexual man who had been a chairman of the Irısh Gay
73
Sanles Sanles v Spain applicaiton no4833599 decision of 26102000 at
httpechrketsecomdoc4833599-en-20001026view (accessed September 2012) 74
Harris OrsquoBoyleBatesBuckleysupra n5 p798 75
Kurt v Turkey application no24276 94 judgment of 25051998 paras 72 and 130 at
httpsimlawuunlsimcaselawHofnsf1d4d0dd240bfee7ec12568490035df05bc1f3bc60791a049c1256
640004c3936OpenDocument ( accessed September 2012) 76
Boyle and Hannum ldquoIndividual Applications Under the European Convention on Human Rights and
the Concept of Administrative Practice The Donnelly Caserdquo American Journal of IntLawVol68
1974 p 442
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
33
Rights Movement for years77
He complained about the legislation in Ireland which
penalised certain homosexual activities The applicant gave evidences of having
suffered depression anxiety and loneliness because of the fact that he was irreversibly
homosexual and he was living his life under the risk of being prosecuted Yet he had
never been charged with any offence before or during the Court proceedings 78
The
court held that the individuals can claim to be a victim of a certain law itself without an
individual measure of implementation ldquoif they run the risk of being directly affected by
itrdquo79
Therefore as to the concerning case the Court concluded that the applicant can
claim to be the victim of a violation on the grounds of Article 34 as he is under the risk
of being liable to criminal prosecution as long as the relevant legislation remains on the
statue book Even though it was not enforced before it may be applied at any time so
the applicant is under the risk of being directly affected by the legislation in question
IVIIIII Death of the Applicant During the Proceedings before the Court
In case of applicantrsquos death during the proceedings brought before the Court the
continuation of Convention proceedings depends on the nature of the complaint and the
heirs of the deceasedrsquos applicantrsquos heirs having ldquoa legal interest to justify the further
examination of the application on their behalfrdquo80
For example in the case of X v
France the Court accepted that the parents of X who had been infected with the AIDS
virus due to blood transfusions and dies during the proceedings before the Court had a
legitimate interest in pursuing the application in his place and continued with the
examination of the case on the merits81
Moreover in Karner v Austria in which there was no heir wishing to continue the case
after the applicantrsquos death during the proceedings the Court decided to continue of
examination of the case instead of striking out of the list of cases According to the
decision subject matter of the application involves a general importance and interest as
to the development and protection of the Convention system Therefore this case
77
Norris v Irelandappno1058183judgment of 26101998 para9 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57547 ( accessed September 2012) 78
Ibid at para11 79
Ibıdat para31 80
Kofler v Italy Commission Report 9 1082 paras 16- 17DR30 p5 (9) as cited in
GomeenHarrisZwaak supra n64 p46 81
X v France judgment of 31031992series A no234-C as cited in GomeenHansZwaak supra n
64p46
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
34
showed that the application could be continued after the death of an applicant even in
the absence of heirs wishing to continue where the subject matter raises a significant
human rights issue 82
IVIIIV Loss of Victim Status
An applicant may lose his victim status after bringing an application before the Court if
(I) the national authorities had recognized that there had been a violation of the
Convention either expressly or in substance and (II) the applicant had provided with an
adequate redress83
The adequacy of the redress provided by the local authorities is done
case by case by the Court taking into account the claim and the redress provided
Where the remedy provided by the local authorities is in the form of compensation if
the sum awarded by the local authorities is significantly lower than the sum awarded by
the Court in similar cases then the applicant is still accepted as a victim For example in
Cochiarella v Italy the Court stated that the level of compensation which can be
regarded as adequate depends on the ldquocharacteristics and effectiveness of the domestic
remedyrdquo84
In this respect the Court stated that for example if a remedy which is
designed to expedite proceedings and to award compensation can be accepted as
adequate even the compensation provided is lower than those awarded by the Court on
condition that proceedings before local authorities will be speedy85
Apart from the remedies in form of compensation the Court considers ldquowhether the
circumstances complained of by the applicant still obtain and secondly whether the
effects of a possible violation of the Convention on account of those circumstances have
also been redressedrdquo 86
to decide on the continuation of the applicantrsquos victim status For
example in Koc and Tombas v Turkey the applicants complained that their conviction
by the state was a violation of Article 6 of the Convention However during the
proceedings their sentences had not been executed and their criminal records had been
82
Karner v Austria supra n69 at paras22-26-27 83
Leach supra n 51 p 122 84
Cocchiarella v İtalyappno6488601 judgment of 10112004 para96 at
httpechrketsecomdoc6488601-en-20041110 ( accessed September 2012) 85
İbid at para97 86
Ohlen v Denmark appno6321400 judgment of ( Struck out of the List) 24022005 para 26 at
httphudocechrcoeintsitesengpagessearchaspxi=001-68389itemid[001-68389](accessed
September 2012 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
35
erased In other words there would be no possibility for any harmful effects on account
of the unlawful conviction87
IVIII Exhaustion of Domestic Remedies
Article 35of the Convention indicates two procedural admissibility rules Exhaustion of
domestic remedies and to bring an application to the Court within six month period
from the date of the final decision of the local authority
The rule of the exhaustion of domestic remedies reflects the subsidiary characteristics of
the Conventionrsquos protection system
Applicants must provide the information concerning the exhaustion of domestic
remedies (Rules of Court 47f) After the communication of an application to the
relevant state the respondent government which raises objections to the exhaustion of
remedies is then required to proof the existence of an effective adequate and accessible
redress in respect of the applicantrsquos complaints88
If the Court is satisfied with the
governmentrsquos statements then this time it is the applicant who should show that (I) the
remedy is exhausted or (II) the remedy is inadequate or ineffective or there are special
circumstances absolving him from invoking the remedy 89
The term lsquodomestic remediesrsquo refer primarily judicial remedies but is there are any
administrative remedies which meets the criteria of availability sufficiency and
effectiveness they must be exhausted 90
Nevertheless the only remedies which should
be exhausted are those available in practice adequate to provide relief for the damage
suffered as a result of a violation and effective for the object sought by the applicant in
the particular circumstances of the case 91
On the other hand the Court emphasizes that
this rule is lsquoneither absolute nor capable of being applied automaticallyrsquo accordingly it
must be applied with ldquosome degree of flexibility regarding the general legal and
political context in which the formal remedies operate as well as the personal
87
HarrisBoyleBatesBuckley supra n5 p797 88
Leach supra n51 p126 89
İbid 90
DSullivan lsquoOvervıew Of The Rule Requırıng The Exhaustıon Of Domestıc Remedıes under the
Optıonal Protocol to CEDAWrsquo OP-CEDAW Technical Papers No 1 (2008) p 5 91
SullivanIbidp3
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
36
circumstances of the applicantrdquo For instance the Court decided in Dh Others v Czech
Republic it would be unduly formalistic to require the applicants to exercise a remedy
which even the highest court of the country had not obliged them to use 92
Therefore
the Court examines the applicability of this rule taking into account every particular
situation case by case
To satisfy the exhaustion requirement the applicant is obliged to obtain a final
judgment from the highest court available regarding all aspects of the claims brought
before the Court or alternatively to provide information showing that the remedies are
unlikely to provide effective and adequate relief in regard to the compliant or there are
recognized exceptions to the requirement93
However mere doubts of the applicant with regard to the effectiveness of particular
remedy do not absolve him from the obligation to submit a complaint to the competent
court 94
In Akdivar v Turkey the applicants alleged that state security forces had launched an
attack on their village burnt their homes and forced the immediate evacuation of the
entire village95
This event had taken a place in a region characterised by significant
civil strife due to terroristsrsquo attacks96
The applicants had not applied to administrative
or civil courts to get any redress97
The government raised objections to the claims
stating that the houses had been burnt by the terrorist groups not by the security
forces98
Furthermore the government argued that the applicants could have sought
compensation for the alleged damage pursuant to the Convention 125 (social risk
principle) before the administrative courts With regard to the civil law it was
emphasized by the government that Code of Obligations provided for a right to damages
in cases where security forces committed unlawful acts99
92
Dh others v Czech Republic app no5732500 judgment of 131120072009 para118 at
httphudocechrcoeintsitesengpagessearchaspxi=001-83256 (accessed Septenber 2012) 93
Sullivansupra n91p9 94
Epozdemır v Turkeyappno5703900 decision of 31012002 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22195 ( accessed September 2012 )
95 Akdıvar v Turkey appno2189393 judgment of (Merits and Just Satisfaction) 16091996 para15 at
httphudocechrcoeintsitesengpagessearchaspxi=001-82987 (accessed September 2012) 96
Ibid para70 97
Ibıdpara71 98
Ibıdpara 16 99
Ibıdpara57
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
37
At the outset the Court established the social political actual circumstances where the
events took place before examining the dispute in concern In the view of the Court
seeking for an efficient redress in such a situation of the region under terrorist attacks
can be considered futile since the destruction of proper functioning of the judicial
system could be expected100
Additionally the reluctance of the state to undertake the
responsibility for loss and damaged properties was observed The state did not attempt
neither to carry out a full effective prosecution of alleged crimes ndashpurposely destruction
of properties by army forces- nor to award a compensation101
Furthermore
compensation awarded by the administrative courts for both peculiar and non peculiar
property caused by terrorist acts was found insufficient and inadequate On the other
hand a possible application to civil courts and bringing an action against the army
forces was far from being capable of providing redress in respect of the applicantsrsquo
complaints due to the negligent attitude of the government in concern Therefore the
obligation to exhaust this remedy was disposed according to the special
circumstances102
Eventually the Court held that the applicants demonstrated the existence of special
circumstances which dispensed them at the time of the events complained of from the
obligation to exhaust domestic remedies and the application could not rejected for
failure to exhaust domestic remedies103
In the Akdivar v Turkey case the Court stressed the importance of establishment of the
statersquos responsibility for the destruction of the applicantrsquos properties Actually as the
Court stated to provide compensation for damages was not enough solely to be
considered as an effective redress to carry out legal proceedings concerning
identification of the perpetrators of alleged acts would have been capable of providing
redress in respect of the applicantrsquos complaints
Likewise in Dogan v Turkey having similarities with Akdivar case the Court held that
a result of the applicantsrsquo inability to have access to their possessions in their villages
there had been a violation of Article 8 and 13 and the Article 1 of the Protocol 1
100
Ibıd para70 101
Ibıdpara71 102
Ibıd para75 103
Ibıdpara76
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
38
With regard to the exhaustion of domestic remedies the Court stressed that as it did in
the case of Akdivar that ldquoin case of an arguable claim respecting forced eviction and
destruction of property which is attributable to the state the notion of lsquoeffectiversquo
remedy entails in addition to the compensation of damages incurred ldquoa thorough and
effective investigation capable of leading to the identification and punishment of those
responsible and including effective access by the complainant to the investigative
procedurerdquo104
Furthermore the Court points out that the applicantsrsquo complaints in the
instant case essentially relate to their forced displacement and inability to return to their
homes their village not to their inability to recover damages from the authorities105
After the examining of the domestic remedies by means of the proceedings before the
administrative and civil courts the Court came to the conclusion that either of the
remedies is not sufficient to identify the agents whose acts had been illegal and thus
carry out an efficient prosecution leading to their punishment against of those agents106
In conclusion it is so clear that these remedies at issue were not regarded as effective
and adequate since they are not concerned about the recovery of grievance of the
applicants
On the other hand in Icyer v Turkey107
which was a case similar in context of factual
and legal matters with those in Akdivar and Dogan cases the Court considered
monetary compensation for the harm caused granted by an administrative ie non
judicial commission of the Interior Ministry as an adequate and effective remedy and
rejected the claims of the applicants regarding the insufficiency of domestic remedies
However in this case the applicants complained of the unlawful acts of the agents and
requested suspension of the violation at issue namely forced displacement and
detriment of properties It is so clear that the commission of the government has not
power to carry out criminal proceedings to find out the perpetrators of the unlawful
conduct nor the state itself made a declaration concerning an attempt to find out the
ones who were responsible for the violations In that regard this case is to this extent
inconsistent with Akdivar and Doğan
104
Dogan and Others v Turkey Appno 8803-881102 881302 8815-881902 judgement of
29062004 para106 at
httpsimlawuunlSIMCaseLawhofnsfd0cd2c2c444d8d94c12567c2002de990971633d2560fd734c12
56ec200304d40OpenDocument ( accessed September 2012) 105
Ibid para108 106
Ibidparas105-107 107
Icyer v Turkey Appno 1888802 decision of 12012006 at
httphudocechrcoeintsitesengpagessearchaspxi=001-72123 (accessed September 2012)
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
39
IVIV Six Month Time Limit
Article 35 imposes another admissibility criterion If an application is not lodged within
six months from the date of the final decision of the highest national authority it is
inadmissible The Court considers that the six month rule is a public policy rule that
may be applied by the Court on its own motion even if the respondent state has not
raised any questions on the issue108
The six month time starts to run from the date on which the applicant or the
representative of the applicant has sufficient knowledge of the final domestic
decision109
Where the absence of available domestic remedies the six month limit starts running
from the day after the applicant became aware of the act or decision which is the subject
matter of the complaint 110
The running of the time limit is interrupted by the initial letter of the applicant which
indicates an intention to apply to the Court and the nature of the complaints in question
However a completed application form should be submitted within two months of the
initial letter otherwise the initial letter treated as stopping the running of the time limit
111
As regards to the lsquocontinuing violationsrsquo of the Convention as long as the violation
exists the time limit of six months does not apply112
The Court distinguishes instantaneous acts which might give rise to lsquocontinuing effectsrsquo
from continuing violations Only the latter violations prevent six month time limit113
108
Sabri Gunes v Turkey supra n47 para29 109
Practical Guide supra n 30 p23 for example in the case Sabri Gunes v Turkey ( supra no 47 ) the
Court declares at the paragraph 34 that ldquo Thus the Chamber observed that the decision of the Supreme
Military Administrative Court of 16 November 2005 which constituted the final domestic decision had
been served on the applicant on 28 November 2005 and that the time-limit set by Article 35 sect 1 of the
Convention had therefore started to run on 29 November 2005 and had expired on 28 May 2006rdquo 110
C Ovey RWhite The European Convention on Human Rights ( 5 th
ed OUP2010 ) p38 111
Mowbraysupra n61 p36 112
Ovey White supra n 111 p38 113
Mowbray supra n 61 p38
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
40
IVV Was the alleged violation committed by a contracting party
Another aspect of the Courtrsquos competence ratione personae is the question of whom the
application can be made against
Both the interstate and the individual applications can be brought against a contracting
party state of the Convention within the framework of its obligations which rise from
the Convention 114
According to Article 1 of the Convention ldquothe High Contracting
Parties shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Conventionrdquo
However as Milanovic states ldquojurisdiction does not imply attribution in the sense that
anything that occurs within a statersquos jurisdiction is attributable to it In such situations
state responsibility may arise for the statersquos failure to implement positive obligations
under human rights treaties [hellip] even though both jurisdiction and attribution can be
based on the same set of factsrdquo 115
Therefore the compatibility ratione personae of an application are tied to the question
whether the particular conduct complained of can be attributable to the state or not
The term jurisdiction not only relates to the national territory of that state States may be
held responsible because of acts of their organs or agents or forces whose acts are
attributable to that state producing effects outside their own territory
In the case Loizidou v Turkey116
the applicant compliant that her property rights had
been breached as a result of the continued occupation and control of the northern part of
Cyprus by Turkish armed forces which had on several occasions prevented her from
gaining access to her home and other properties there She further complained that the
114
Ovey White supra n 111 p33 115
M Milanovic lsquoFrom Compromise to Principle Clarifying the Concept of State Jurisdiction in Human
Rights
Treatiesrsquo 8 (3) Human Rights Law Review (2008) p 441 at p447 116
Appno 1531889 jugment of 23051995 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accessed September 2012 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
41
refusal of access to her property constituted a continuing violation of Article 8 (art 8) of
the Convention and Article 1 of Protocol No 1 (P1-1)
Although Turkish Government had acknowledged that the applicants loss of control of
her property had stemmed from the occupation of the northern part of Cyprus by
Turkish troops and the establishment of Turkish Republic of Northern Cyprus ( TRNC )
in northern part of the island it denied state responsibility throughout the proceedings
for the matters complained of claiming that its military forces were acting exclusively
in conjunction with and on behalf of the independent and autonomous TRNC
authorities
The Court stressed that the responsibility of states can be raised by acts and omissions
of their organs or agents or authorities which produce effects outside their own territory
In the case the applicant had lost control of her property as a result of the occupation of
presence of the large contingent of Turkish troops in Northern Cyprus and the
establishment of an subordinate authority to Turkey It was very clear from the large
number of troops engaged in active duties in the area that Turkey exercised effective
overall control over northern Cyprus through its military forces that is people whose
acts are attributable to it As a result Turkeyrsquos responsibility under the Convention was
raised for the actions of the TRNC authorities which give rise to an allegation of the
infringement of rights and freedoms set forth in the convention
The Court concluded its analyse that the applicants inability to access to her property in
northern Cyprus was ldquo matter which falls within Turkeys jurisdiction within the
meaning of Article 1 of the Convention and was thus imputable to Turkeyrdquo Hence
Turkey was held liable for the infringement of article and committed over territory
which it had an overall control
Since the states are obliged to prevent human rights violations even by the third parties
(ie private persons non state groups) against other private persons its responsibility
may also arise for acts or omissions of private persons where it has failed to implement
positive obligations arising from the Convention117
117
DM Chirwa lsquoThe Doctrıne Of State Responsıbılıty As A Potentıal Means Of Holdıng Prıvate Actors
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
42
IVVI Competence Ratione Loci
Article 1 of the Convention required contracting parties to secure and ensure the rights
and freedoms defined in the Convention to all persons within their jurisdictions
In that regard the determination of a state jurisdiction is central since the Convention
does not apply in the absence of a statersquos jurisdiction118
In the case law of the Court the concept of jurisdiction has been the subject of a long
evolution 119
In the early decisions of Strasbourg organs for example in Turkey v
Cyprus the Commission determined that exercising of jurisdiction is not limited only to
its national territory it may extend beyond the borders It stated that the contracting
parties are obliged to secure the rights and freedoms set forth in the Convention to all
persons under their actual lsquoauthorityrsquo and lsquoresponsibilityrsquo120
According to the
Commission when the authorised agents of a state are abroad they bring any other
persons or property within the jurisdiction of that state to the extent that they exercise
authority over such persons or property121
Accordingly the Court found Turkey liable
for alleged violations committed by its armed forces in Northern Cyprus
The Court developed a remarkable approach to the definition of state jurisdiction in
Loizidou case in 1996122
ldquoeffective overall control of an areardquo In Loizidou the
applicant was a Greek Cypriot living in South Cyprus She complained about the
violation of her property rights under the Convention by Turkey as she was not allowed
to access her properties in North Cyprus
Accountable For Human Rıghtsrsquo 5 Melbourne Journal of International Law [online] (2004) at
httpwwwlawunimelbeduaufilesdmfiledownload4f081pdf ( accessed September 2012) 118
Milanovicsupra n116 p 416 119
Harris OrsquoBoyleBates Buckley supra n 5p804 120
Turkey v Cyprus appno678074 695075 Commission decision of 26051975 para8 at
httpechrketsecomdoc678074-695075-en-19750526view ( accessed September 2012) 121
Ibıd 122
Milanovic supra n 116 p428
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
43
The arguments of Turkey that the Northern Cyprus did not fall under its jurisdiction and
the administration of the Turkish Cypriot community had absolute jurisdiction over that
part of the island was rejected by the Court123
In preliminary objection judgment the Court announced that concept of jurisdiction
under Article 1 of the Convention is not restricted to the national territory of the
contracting states124
At the merits stage the Court determined the presence of Turkish
army forces ldquowhich engaged in active duties in the Northern part of Cyprusrdquo that
Turkey exercises an overall control over that part of the island either through its armed
forces or a subordinate local administration125
In other words simply ldquoTurkey has an
actual power to affect the lives of the inhabitants of the territory that it occupiedrdquo126
It was concluded that the matters complained of by the applicant are capable of falling
within the ldquojurisdictionrdquo of Turkey even though they have occurred outside her national
territory Her obligation to secure to the applicant the rights and freedoms set out in the
Convention therefore extends to the Northern part of Cyprus 127
A significant case Bankovic v Belgium and 16 other contracting states was declared
inadmissible in 2001 by the Grand Chamber The applicants were the relatives of
victims of a NATO air strike on a radio station in the former Federal Republic of
Yugoslavia during the Kosovo campaign Their application was brought against 17
European member states The applicantrsquos complaint about the bombing of the station
building in 1999 by NATO forces and invoked article 2 10 and 13
The Court referred to the ordinary meaning of the term jurisdiction in general
international law which is ldquoessentially territorialrdquo and exceptionally extra territorial
under the circumstance of military occupation or through the consent invitation or
acquiescence of the Government of that territory exercises all or some of the public
powers normally to be exercised by that government128
Furthermore the Court argued
123
Loizidou v Turkeyappno15318 judgment of 23051995 para130 at
httphudocechrcoeintsitesengpagessearchaspxi=001-57920 ( accesed September 2012) 124
Ibid para62 125
Ibidparas60-62 126
Milanovic supra n116 p424 127
Louzidou v Turkey supra n124para56 128
Bankovic and Others v Belgium and Others appno5220799 decision of 12122001 [GC] para 71 at
httphudocechrcoeintsitesengpagessearchaspxi=001-22099itemid[001-22099](accessed
September 2012)
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
44
that ldquothe Convention is in a regional context and notably in the legal space of the
contracting states The Federal Republic of Yugoslavia clearly does not fall within the
legal spacerdquo Also the Court identified the decision of Turkey v Cyprus as ldquodesirability
of avoiding a gap or vacuum in human rightsrdquo respecting exercising of extra territorial
jurisdiction 129
In this respect it can be said that in Bankovic the Court shifted from its previous
approach to the notion of jurisdiction introduced in its decision in Loizidou case
IVVII Competence Ratione Temporis
The provisions of the Convention only apply to complaints concerning any act or fact
which took place after the date of the entry into force of the Convention in that
respondent state130
The principle underlying this criterion is that the contracting states are not obliged to
lsquoprovide redress for wrongs or damage caused prior to their ratification of the
Conventionrsquo131
The Court can examine its temporal jurisdiction at any stage of the proceedings on its
own motion taking into account of the date of the alleged acts or omissions of the
relevant state in each specific case to determine its temporal jurisdiction 132
However if there is a continuing violation which originated before the entry into force
of the Convention but its adverse effects persist after the relevant date the Court finds
itself competent ratione temporis Particularly in cases concerning property rights the
Court tends to determine the alleged violation as a continuing situation133
For example
continuing unlawful occupation of a land belonging to applicants by state authorities or
failure to pay compensation for nationalised property were regarded as continuing
situations and examined by the Commission and the Court On the other hand
according to the Court ldquothe mere deprivation of an individualrsquos home or property is in
129
Ibıd para80 130
Practical Guide supra n 30p40 131
Kopecky v Slovenia app No 4491298 judgment of 07012003 para 38 at
httpechrketsecomdoc4491298-en-20030107 ( accessed September 2012) 132
Practical Guidesupra n30p41 133
Ibıdp 42
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
45
principle an ldquoinstantaneous actrdquo and does not produce a continuing situation of
ldquodeprivationrdquo in respect of the rights concernedrdquo134
Therefore in the case Blecic v
Crotia the Court concluded that the termination of the applicantrsquos tenancy did not create
a continuing situation
IVVIII No Significant Disadvantage
According to Article 353(b) the Court seeks for the answers of these three questions
(1) Did the applicants sustain significant disadvantage (2) Does respect for human
rights require an examination of the applications on the merits (3) Were the
applications duly considered by a domestic tribunal
The Court has already declared in its so far delivered decisions on the issue in question
that ldquothe severity of a violation should be assessed taking account of both the
applicantrsquos subjective perceptions and what is objectively at stake in a particular
caserdquo135
However the assessment of the level of severity is highly relative and depends on the
circumstances of the particular case at stake so that it can be thought that it is likely
difficult to detect a purely objective threshold for determining whether the claims at
stake can be characterised as insignificant
One can think that the terms lsquosignificant disadvantagersquo refer to only the financial impact
of the dispute in question but the Court takes into account important questions of ldquothe
nature of the right allegedly violated the seriousness of the claimed violation andor the
potential consequences of the violation on the personal situation of the applicantrdquo136
At
the same time however the Court points that ldquoapplicantrsquos subjective feelings about the
impact of the alleged violations always need to be justifiable on objective groundsrdquo137
134
Blečić v Croatia appno59532 judgment of 08032006 [GC] para 86 at
httphudocechrcoeintsitesfrapagessearchaspxi=003-1601997-1677316 ( accessed September
2012) 135
Korolev v Russia app no 2555105 decision of 01072010 at
httphudocechrcoeintsitesengpagessearchaspxi=001-99843 ( accessed September 2012) 136
Research Report supra n36 p5 137
Korolev v Russia supra n 136
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
46
Most of the cases already examined so far in the light of significant disadvantage
admissibility criterion concerned financial matters For example in Ionescu v Romania
where the criterion was applied for the first time the applicant claimed before the
domestic courts the sum of 90 Euros against a bus company with which he had travelled
for not providing the promised services The Court held that the financial loss of the
applicant was too marginal and also there was no evidence that a loss of 90 Euros would
have affected his personal life significantly138
Hence despite the fact that almost all of the rights enshrined in the Convention involve
the protection of the applicant in context of pecuniaryfinancial loses the Court may
consider the moral nature of a violation in a particular case to determine the existence of
a significant disadvantage For example in Giuran v Romania139
where the subject of
the complaint were the domestic proceedings for the recovery of stolen goods worth x
euro from the house of the applicant the Court took ldquoa personal question of the
applicant -his right to respect for his possessions and for his homerdquo into account when
deciding that there had been a significant disadvantage on behalf of the applicant140
In
spite of the fact that the subject matter of the case was actually material the Court
focused on the moral dimension of the case
However the court has applied the new admissibility ground not only to applications
claiming monetary losses but also to applications seeking redress for non-monetary
losses
In cases against Czech Republic ndash Bratri Zatkove141
Holub142
and Cavajda143
the
applicants whose cassation appeals had been dismissed claimed that the observations
submitted domestic courts had not been communicated to them during the proceedings
before the national constitution court The Court noted that ldquonon communicated
observations of the domestic courts had not contained anything new or relevant to the
case and the decision of the constitutional court in each case had not based on them
138
Iounescu v Romania app no 2491605 judgment of 24052011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-104845 ( accessed September 2012) 139
Giuran v Romania appno 2436004 judgment of 21 June 2011 at
httphudocechrcoeintsitesengpagessearchaspxi=001-105269 ( accessed September 2012) 140
Ibid paras15-25 141
Bratři Zaacutetkove v the Czech Republic appno 2086206 decision of 08022011 142
Application no 2488005decision of 14122010 143
Application no1769607decision of 29032011
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
47
thus nothing could suggest that the appeals would have been successfulrdquo 144
As a result
these three cases found inadmissible that the applicants had not suffered significant
disadvantage in their right to take part properly in the proceedings before the
constitutional court In Holub v Czech Republic the important point noted by the court
was that the disadvantage related to the procedural rights of the applicant not to the
financial sum in the civil proceedings145
In another case Luchaniova v Ukraine146
the applicant complained that due to
proceedings before the domestic court which have been unlawful and conducted in an
unfair manner her professional life had been affected negatively Taking into account
her dismissal from work the Court concluded that the applicant had suffered significant
disadvantage
As a result it seems that the new criterion has not been clearly identified on objective
grounds by the Court until this time According to the observations of Holy the Court
ldquois very cautious about applying the new measure and when it encounters doubts it
prefers to invoke other available tools from the admissibility listrdquo147
Furthermore the
Council of Europe invited the Court in the Interlaken Declaration to ldquogive full effect to
the new admissibility criterion provided for in Protocol 14 and to consider other
possibilities of applying the principle de minimis non curat praetorrdquo148
Coming to the practical impact of the new criterion on the caseload problem it is not
likely that it will be a drastic solution since it is estimated that it may be applied only to
a small number of cases149
Before the adaptation of the new admissibility rule about
90 of the cases were found inadmissible on grounds of other existing criteria which
are an indicator that already existing criteria are sufficient and capable of covering the
scope of the new significant disadvantage criterion150
144
KHoly lsquoSignificant Disadvantage Suffered by the Applicant as a new Admissibility Criterion before
EctHR-Necessary Development or Too Far Reachingrsquo 4 Silesian Journal of Legal Studies (2012) p21 at
p28 145
Ibid 146
Application no 1634702 decision of 09062011 147
Holy supra no 145 p31 148
See Interlaken Declaration (1902 2010) para9(c) available at
httpwwwcoeinttdghlcooperationcapacitybuildingSourceinterlaken_declaration_enpdf 149
Holy supra no 45 p31 150
Ibid p32
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
48
When taking note of the fact that the significant disadvantage criterion has been
strongly opposed for its potential restrictive impact on the right of individuals to access
to the Court the crucial question which should be considered now is whether this new
criterion is needed at all
Therefore instead of creating such a problematic criterion which potentially undermines
the right of individual petition the reform process could have just focused on solving
the internal problems of member states such as non-execution of the Courtrsquos judgments
which are the real reason of great number of applications brought before the Court
IVIX Is An Application Manifestly Ill Founded
According to Article 353(a) ldquothe Court shall declare inadmissible any individual
application submitted under Article 34 if it considers that
(a) the application is incompatible with the provisions of the Convention or
the Protocols thereto manifestly ill founded or
(b) an abuse of the right of individual applicationrdquo
As Majercik states ldquoamong the grounds for rejection the most common was rejection of
an application as being ldquomanifestly ill-foundedrdquo at the early staged of the proceedings
(91 cases 46 in 2009)151
The Court will consider any application manifestly ill founded if it is understood at the
outset without initiating an examination on merits that its substance does not disclose
any appearance of a violation of the rights set forth in the Convention152
The manifestly ill founded applications have been divided into four categories in the
Practical Guide on Admissibility Criteria published by the Council of Europe fourth
instance complaints complaints where there has been no violation unsubstantiated
complaints confused or far-fetched complaints 153
151
L Majercik lsquoThe Invısıble Majorıty The Unsuccessful Applıcatıons Agaınst The Czech Republıc
Before The European Court Of Human Rıghtsrsquo 1 CYIL 1 (2010) p217 at p 221 152
Practical Guide supra n30p 68 153
Ibid p69
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
49
First category of ill founded complaints is fourth instance complaints As the Court
cannot be called on to quash the domestic rulings or re-examine them as a supreme
court it declares applications as ill founded which contain allegations concerning errors
of fact or law committed by a national court ldquounless and in so far as such errors may
have infringed rights and freedoms protected by the Conventionrdquo154
Secondly a complaint may also be declared ill founded if there is no sign of violation
of the rights set forth in the Convention
For example if the behaviour or act subject to complaint has been performed by legally
authorized bodies by observing legal procedures and granting the right to defend and
submitting evidence to the complainant and by taking all legal and factual aspects into
consideration then the application by the complainant is considered as manifestly ill
founded155
In the case of rights which are not in the nature of absolute rights and which are subject
to certain limitations the court shall decide whether this limitation is proportionate by
taking the following 3 criteria into consideration156
- Was the interference in accordance with a ldquolawrdquo that was sufficiently
accessible and foreseeable
- If so did it pursue at least one of the ldquolegitimate aimsrdquo which are
exhaustively enumerated
- If that is the case was the interference ldquonecessary in a democratic societyrdquo
in order to achieve that aim In other words was there a relationship of
proportionality between the aim and the restrictions in issue
154
Ibid p70 155
Ibid p 71 156
Ibid p 72
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
50
If all three of these questions are answered satisfactorily by the state then limitation of
such right will be found to be compliant with the Convention Otherwise it will be
concluded that the said right is violated
As the proceedings before the Court are adversarial in nature it is the responsibility of
the parties to submit their factual and legal arguments in support of their allegations to
the Court For example if an applicant simply refers one or more provisions of the
Convention without declaring in what way they have been breached unless this is clear
from the facts of the case the Court will reject the application as it is manifestly ill
founded157
Applications that are too complicated to the extent that it is impossible to understand the
case that constitutes the subject of the complaint or the content of the claim or
applications based on imaginary or unachievable matters are also considered as
manifestly ill founded 158
IVX Competent Ratione Materia
The compatibility of an individual application with the Convention ratione materiae
deals with the question whether the application concerns the violation of a right which
is protected by one or more provisions of the Convention or the protocols
Vast majority of applications which has been declared inadmissible on the ground of
incompatibility ratione materiae related to the limits of the scope of the right to a fair
hearing right to respect for private and family life home correspondence and the
protection of property Therefore interpretation of the articles of the Convention by the
Court and the case law are the key elements to determine the scope of the rights
guaranteed by the Convention
157
Practical Guidesupra n30 p74 158
Ibid
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
51
IVXI Abuse Of The Right Of Application
In Hadrabova and others v Czech Republic159
the applicants did not informed the Court
during the proceedings that they had already applied for compensation to the local
authorities and had been provided remedy by those local authorities Having regard to
the importance of the information at issue for the proper determination of the case the
court held that the applicants failure to inform the Court was contrary to the purpose of
the individual application right thus rejected the applications as an abuse of the right of
application in accordance with Article 35 of the Convention
Abuse of the right may consist during the proceedings before the court such as the
failure to provide the necessary information even after repeated requests or the failure to
disclose the new developments occurred during the proceedings Abuse of right is
generally concerned with the motives of the applicant to lodge the applications at stake
For instance applications based on untrue facts or misleading descriptions of the facts
may constitute an abuse of right of petition160
159
Application no 4216502 25092007 at httphudocechrcoeintsitesengpagessearchaspxi=001-
82839( accessed September 2012) 160
Practical Guide supra n 30p32
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
52
V PROCEEDINGS BEFORE THE COURT (II) RESOLUTION OF THE
DISPUTE
VI Preliminary Remarks
Once an application is declared admissible by the Court the case can be resolved either
by a judgment on merits of the case at stake by the Court pursuant to Article 38 of the
Convention or by a friendly settlement reached between the parties of the dispute in
concern in accordance with Article 39 of the Convention161
At any stage of the proceedings either the Court according to Article 38 of the
Convention or the parties may make proposals for friendly settlement of the case162
If
the parties cannot reach a settlement the Court will continue to its examination on the
merits to determine whether there is a violation or not of the Convention163
After the admissibility decision the Court may ask for further observations or
information required from either party for the consideration of the case on merits164
Under the Rule of Court 532 and Article 281 of the Convention if the Committee is
satisfied by the partiesrsquo arguments it will adopt a judgment including the decision on
admissibility on the merits as appropriate on just satisfaction if the underlying question
in the case is already the subject of well established case law of the Court This decision
is final (Rule of Court 534) The decisions of the Committeesrsquo are final If a
Committee has not adopted a decision or judgment the application will be forwarded to
the Chamber
161
Article 39 of the Convention reads as follows
ldquo Friendly settlements
At any stage of the proceedings the Court may place itself at the disposal of the parties concerned with a
view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in
the Convention and the Protocols thereto
Proceedings conducted under paragraph 1 shall be confidential
If a friendly settlement is effected the Court shall strike the case out of its list by means of a decision
which shall be confined to a brief statement of the facts and of the solution reached
This decision shall be transmitted to the Committee of Ministers which shall supervise the execution of
the terms of the friendly settlement as set out in the decisionrdquo
162
Harris OrsquoBoyle BatesBuckley supra n5 p830 163
European Court of Human Rights The ECHR in 50 Questions European Court of Human Rights
Publication p8 available at httpwwwechrcoeintNRrdonlyres5C53ADA4-80F8-42CB-B8BD-
CBBB781F42C80FAQ_ENG_A4pdf (accessed August 2012 ) 164
Mowbraysupra n61 p44
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
53
The Chamber may decide to examine the admissibility and the merits at the same time
in accordance with the Article 291 of the Convention However the Chamber can
decide at any stage to take separate decision on admissibility where significant issues
worth examining concerning the admissibility arises (Rule of Courts 54A Article 292
of the Convention) If the application is found admissible then the Chamber will
immediately adopt a judgment including its decision on the admissibility The judgment
of the Chamber will become final according to Article 44 of the Convention165
It
should be noted that the separate admissibility decisions are final and cannot be referred
to the Grand Chamber however joint judgments which include both the decision on
admissibility and the merits of the case can be referred to the Grand Chamber166
The Grand Chamber hears a case in two exceptional conditions (i) referral of a
Chamber judgment within three months from the delivery date of the judgment167
(ii)
relinquishment of the jurisdiction in favour of the Grand Chamber where the case before
the Chamber raises serious questions in the context of the interpretation of the
Convention or the Protocols or the resolution of the case is likely to be inconsistent with
a previous judgement of the Court168
The decisions of the Grand Chamber are final
Resolution of a dispute can be achieved by a friendly settlement or an adoption of a
formal judgment by the Court On the other hand the Court may strike out a case at any
stage in the proceedings where it considers that any of the following situations appears
according to Article 371 of the Convention (1) The applicant did not pursue his
application (2) the matter has been resolved (3) for any other reason established by the
Court it is no longer justified to consider the examination of the application
However if lsquorespect for human rightsrsquo requires that the case should continue then the
Court may not strike the case out 169
165
Article 44 of the Convention reads as follows
ldquoFinal judgments
1 The judgment of the Grand Chamber shall be final
2 The judgment of a Chamber shall become final
(a) when the parties declare that they will not request that the
case be referred to the Grand Chamber or
(b) three months after the date of the judgment if reference of
the case to the Grand Chamber has not been requested or
(c) when the panel of the Grand Chamber rejects the request to refer under Article 43
3 The final judgment shall be published 166
Harris OrsquoBoyleBatesBuckleysupra n 5 p826 167
Article 30 of the Convention 168
Article 43 of the Convention 169
Leach supra n 51p69
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
54
VIIFriendly Settlement
Friendly settlement means an agreement between the parties of the dispute aiming at to
reach a solution of the matter170
The negotiations of the settlement are confidential and
not the judges but the registry of the Court has a leading role to help the negotiations
along The settlement reached must be based on lsquorespect for human rightsrsquo171
According to Article 39 ldquo if a friendly settlement is effected the Court shall strike out
the case of its list by means of a decision which shall be confined to a brief statement of
the facts and the solution reachedrdquo 172
A friendly settlement is a very beneficial way of terminating a dispute in so many
aspects both for the applicant the government and to the Court173
First of all it can be
used as a non-judicial complementary tool for reducing the Courtrsquos growing case load
Furthermore the defendant state may consider terminating the proceedings beneficial
because it relieves such state from an accusation of human rights violation
Also the applicant will have the certainty concerning the outcome of the dispute and the
recovery of the damages incurred without the long proceedings before the Court174
The settlement of a dispute within framework of respect to human rights and the public
interest will depend on the circumstances of each individual case for example where a
violation of the Convention stems from a general legislation or administrative practice
which is likely to be continued the recovery of the violation may be required not only
granting a compensation for the damages incurred but also buying off the violation by
changing the general regulation or the administrative practice involving the breach of
the provisions of the Convention175
Such cases arise in the existence of a pilot
judgment on the merits by the Court which is given to reveal a systemic or structural
problem in the legal order of the defendant state in question
170
Mowbray supra n 61p45 171
PvanDijkGJH van Hoof Theory and Practice of the European Convention on Human Rights
(Kluwer Law İnternational 1998 ) p179 172
Article 39 of the Convention 173
Janis Kay Bradleysupra n9 p50 174
Van Dijk Van Hoof supra n 172 p179 175
İbidp180
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
55
For example in Broniowski v Poland the parties agreed with a compensation scheme
after the deliverance of the Courtrsquos judgment where the government affirmed that all the
practical measures would be taken to make the compensation scheme work effectively
and a compensation for non pecuniary and pecuniary damage incurred would be granted
to the applicant The Grand Chamber was satisfied that the agreement between the
parties was based on the principle of respect for human rights which was aiming at not
only compensating the damages of the applicant but also remedying a general defect in
Polish legal order stated in the pilot judgment in concern and struck the case out of the
list176
Taking into account that friendly settlement is an important alternative way enabling to
reduce the Courtrsquos work load the reforms adopted by Protocol 14 called the Court and
to take an active role by adopting a decision including the facts the terms of the
agreement and the Committee of Ministers to supervise the enforcement of the terms of
friendly settlement 177
VII Judgment
The Chambers adopt their judgement immediately by a majority of the sitting judges
where the parties have not reached a friendly settlement or the application has not been
struck out of the list of cases or relinquished on behalf of the Grand Chamber The
Committees may also adopt a unanimous judgment which includes their decision on
admissibility and if appropriate on just satisfaction where they are empowered to adopt
a judgement 178
The Court applies the standard of proof ldquobeyond reasonable doubtrdquo in
its assessment of the evidence as stated in Cyprus v Turkey case179
If a Chamber finds
that there has been a violation of the Convention or the Protocols thereto it will
determine whether to award a just satisfaction to the applicant who had applied for it180
To reduce the workload and to improve its efficiency the Court has created what is
called the pilot judgment procedure181
The first example of pilot judgment was the case
176
Broniowski v Poland appno 3144396 judgment of 28092005[GC] para37 at
httphudocechrcoeintsitesengpagessearchaspxi=001-61828 ( accessed September 2012) 177
Caflischsupra n20 p411 178
Rule 53 of Rules of Court 2012 179
Cyprus v Turkey supra n 121 para112 180
Rule 75 of Rules of Court 2012 181
Mowbraysupra n 61p55
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
56
of Broniowski v Poland where the Court observed a systemicstructural problem in the
respondent statesrsquo legal order which had affected many people The complaints by all
applicants were stemming from the same general problem The complaints were about a
domestic legislation which contains significant restrictions on the right to obtain
compensation for the damaged properties After finding the violation of Article 1 of
Protocol 1 caused due to the legislation the Court set out the necessary general
measures to eliminate the inconsistency between the domestic law and the Convention
As it dictates a general remedy to solve a malfunction which is inconsistent with the
Convention rules within the judicial system of the state and strike out the other
applications claiming violations caused by the same problem some of the scholars
considered that the pilot judgment procedure accentuates the Courtrsquos constitutional
function as the Court may point out the constitutional or systemic improvements at the
national level and guide the domestic courts about the Convention standards in
concluding their decisions whether or not these are formally part of national law182
Furthermore Article 46 of the Convention provides that judgments of the Court are
binding on the respondent State and their execution will be supervised by the
Committee of Ministers of the Council of Europe
The effectiveness of the protection system adopted by the Convention is based on the
effective and speedy execution of the judgments Nevertheless the judgments of the
Court are declaratory in nature and have no direct effect in the internal law of the
contracting states The Court does not act as a lsquoconstitutional courtrsquo which empowered
to repeal annual or modify the domestic provisions or decisions so that it only
establishes whether one of the provisions of the Convention has been breached by the
state in concern or not183
182
Greer supra n 18 p696 183
PEgli lsquoProtocol No 14 To The European Convention For The Protection Of Human Rights And
Fundamental Freedoms Towards A More Effective Control Mechanism lsquo 17(1) Journal of
Transnational Law amp Policy (2007) p1 at p10
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
57
On the basis of the subsidiary principle and the margin of appreciation it is for the
states to determine which necessary measures should be taken for implementation of the
Courtrsquos judgment and fulfilling the obligations184
set forth in the Convention185
However considering the developments in the case law recently one can observe that
there are more explicit references to the requirement of implementation of remedies in
the Courtrsquos judgments Specially through pilot judgments the Court clearly points out
lsquosystemic problemsrsquo caused to the violation in concern and following the necessity of
providing lsquogeneralrsquo remedies For example in the pilot case of Broniowski v Poland the
Court identified a systemic problem ldquoconnected with the malfunctioning of domestic
legislation and practicerdquo causing the violation at issue and called for the state follows
that ldquo( ) general remedies were to be taken in respect of a similarly affected class of
citizens as the claimant in the judgmentrdquo186
184
Under Article 461 of the Convention the member states undertake to abide by the final judgment of
the Court in any case 185
Egli supra n184 p10 186
Broniowski v Poland appno 3144396 judgment of 2202004 paras 189 193-194
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
58
VI CONCLUSION
The right of individual application is considered as a key element of the system of
protecting European human rights By granting to individuals to right to access to an
international tribunal organ it contributes the human rights development all over the
world The recognition of full accessibility of individuals to an international judicial
organ is a result of a long steady process occurring over many years
As Hammarberg announced at his speech given on the occasion of the opening of the
judicial year 2012 the opportunity to appeal to an international body and obtain justice
when it is denied at home has a broader psychological effect on both the actual victims
and their families
However the court has been facing an unbearable caseload problem for a long time due
to high rate of applications The significant disadvantage admissibility criterion as
provided in Protocol 14 which is introduced with a view to solving the caseload
problem is subjected to bitter criticism on the grounds that it restricts the right of
individual application to the court
As a matter of fact ranking human rights violations in order of importance thinking
that some violations are less important than others not worthy of consideration means
that the system allowing everyone claiming that heshe is a victim accessibility to the
european court without the obligation to prove their grievance has undergone a radical
change This perspective will deprive some of these victims from their right to obtain
redress of grievances
On the other hand taking into consideration that this new measure which is being
practiced for the last two years is not frequently invoked by the court is not based on
objective grounds and that other admissibility criteria are adequate for filtering
ineligible applications necessity of such an admissibility requirement restricting
exercise of the right of individual application is debatable
The court faces a challenging dilemma such as reducing caseload without detracting the
right of individual application (without restricting the scope of this right) However the
main reason behind the high number of applications is not the scope of this right but
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
59
rather structural problems faced by member states For example problems such as
excessively slow proceedings in domestic courts failure by national authorities to
execute verdicts pronounced by national court authorities and failure to maintain human
rights safeguards failure to prevent violations of human rights at national level and
failure to redress violations properly Caseload will be automatically reduced when
these problems are solved
Similarly the number of repetitive cases will be reduced when and if member states
ensure that judgments pronounced by the European Court are effectively executed
Focusing on resolving these two problems rather than restricting the right of individual
application not only fulfils the spirit of the convention but also contributes to
development and safeguarding of human rights in the entire continent
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
60
ABSTRACT
The purpose of this study is simply to examine the individual petition right under the
European Human Rights system The right enabling the individuals who claim to be a
victim of the violation of one of the rights set forth in the Convention by one or more
member states access to the judicial protection of the Convention is regarded as a
cornerstone in the field of human rights protection The right of accession to the Court
and seek for an effective remedy is an absolute right and preserved against the
hindrance of the member states On the other hand there are some formal requirements
to make for an admissible application leading to obscure a recovery for the damages
incurred From an initial step of filling out an application form to the outcome of a
judgment providing a relief is a long way process similar to the evolution of the right
itself Some of are considered the right responsible for the growing case load of the
Court Nevertheless the right of application is still alive and an effective tool which
continues to contribute to the human rights dignity and development
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
61
BIBLIOGRAPHY
-Books-
HARRIS David ampOrsquoBOYLE Michael ampBATES Edwardamp BUCKLEY Carla Law of
the European Convention on Human Rights (2nd Edition Oxford University Press
2009)
JANIS Mark W amp KAY Richard amp BRADLEY Anthony W European Human Rights
Law Text and Materials (3rd Edition Oxford University Press 2008)
LEACH Philip Taking a Case to the European Court of Human Rights (3rd Edition
Oxford University Press 2011)
LEMMENS Paul ldquoSingle Judge Formations Committees Chambers and Grand
Chamberrdquo in Paul Lemmens ampWouter Vandenhole ( eds) Protocol No14 and the
Reform of the European Court of Human Rights (Oxford Hurt Publishing 2005)
MIKAELSEN Laurdis European Protection on Human Rights The Practice and
Procedure of the European Commission of Human Rights on the Admissibility of
Applications from Individuals and States (Sijthhoff amp Noordhoff Int Publishers
BV1980)
MOWBRAY Alastair Cases and Materials on the European Convention on Human
Rights (2nd Edition Oxford University Press 2007)
SARDARO Pietro ldquoIndividual Complaintsrdquo in Paul Lemmens amp Wouter Vandenhole
(eds) Protocol No14 and the Reform of the European Court of Human Rights (Oxford
Hart Publishing 2005)
VAN DIJK Pieter amp VAN HOOF Godefridus JH Theory and Practice of the
European Convention on Human Rights (Kluwer Law International 1998)
WHITE Robin CAamp OVEY Clare The European Convention on Human Rights (5th
Edition Oxford University Press 2010)
-Articles-
BOYLE KevinampHANNUM Hurst ldquoIndividual Applications under the European
Convention on Human Rights and the Concept of Administrative Practice The
Donnelly Caserdquo American Journal of International Law 683 (1974) 440-453
CAFLISH Lucius ldquoThe Reform of the European Court of Human Rights Protocol 14
and Beyondrdquo Human Rights Law Review 62 (2006) 403-415
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
62
GREER Steven ldquoWhat is Wrong with the European Convention Human Rightsrdquo
Human Rights Quarterly 303 (2008) 680-702
HAECK Yves ampVANDE LANOTTE Johan ldquoDesperately Trying to Keep the Titanic
Afloat The Reform Proposals Concerning The European Convention On Human Rights
After Protocol No 14 The Report Of The Group Of Wise Persons And Some Further
Proposalsrdquo Inter-American And European Human Rights Journal 1 (2008) 87-123
HOLY Katarzyna ldquoSignificant Disadvantage Suffered by the Applicant as a New
Admissibility Criterion before ECtHR-Necessary Development or Too Far Reachingrdquo
Silesian Journal of Legal Studies 4 (2012) 21-34
KELLER Helen amp FISCHER Andreas amp KUHNE Daniela ldquoDebating the Future of
the European Court of Human Rights after Interlaken Conference Two Innovative
Proposalsrdquo The European Journal of International Law 214 (2011) 1025-1048
MAJERCIK Lubomir ldquoThe Invisible Majority The Unsuccessful Applications Against
The Czech Republic Before The European Court Of Human Rightsrdquo CYIL 1 ( 2010 )
217-222
MILANOVIC Marko ldquoFrom Compromise to Principle Clarifying the Concept of
State Jurisdiction in Human Rights Treatiesrdquo Human Rights Law Review 8 3 (2008)
411-448
ROWE Nicola amp SCHLETTE Volker ldquoThe Protection of Human Rights in Europe
after the Eleventh Protocol to the ECHRrdquo European Law Review 23 3 (1998) 3-
-Online Journal Articles-
BUYSE Antoine ldquoThe Courtrsquos New Priority Policyrdquo ECHR Blog
lthttpechrblogblogspotcom201011courts-new-priority-policyhtmllt (accessed
September 2012)
CHIRWA Danwood M ldquoThe Doctrine of State Responsibility as a Potential Means of
Holding Private Actors Accountable for Human Rightsrdquo Melbourne Journal of
International Law 51 (2004) 1-36
lthttpwwwlawunimelbeduaufilesdmfiledownload4f081pdflt (accessed September
2012)
EGLI Patricia ldquoProtocol No 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Towards a More Effective Control
Mechanismrdquo Journal of Transnational Law amp Policy 171 (2007) 1-34
lthttpwwwrestorativejusticeorgarticlesdbarticles8908lt (accessed September 2012)
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )
63
-Legislation ndash
Council of Europe Explanatory Report to Protocol No 9 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms ETS 140 (November 6
1990)
lthttpconventionscoeintTreatyENReportsHtml140htmlt (accessed October 2
2012)
Council of Europe Protocol 11 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Restructuring the Control Machinery
Established Thereby ETS155 (May 111994)
lthttpwwwrefworldorgdocid42ef8c812htmllt (accessed October 3 2013)
Council of Europe Protocol 14 to the European Convention for the Protection of
Human Rights and Fundamental Freedoms Amending the Control System of the
Convention CETS 194 (May 13 2004)
lthttpwwwrefworldorgdocid42ef8d0b4html lt (accessed October 3 2013)
Council of EuropeEuropean Court of Human Rights Practical Guide on Admissibility
Criteria (2012)
lthttpwwwechrcoeintPageshomeaspxp=caselawanalysisampc=n1347458601286_
pointer lt (accessed September 2013)
Council of Europe Explanatory Report to Protocol No 14 to the Convention for the
Protection of Human Rights and Fundamental Freedoms amending the control system
of the Convention CETS No 194
lthttpconventionscoeintTreatyENReportsHtml194html lt (accessed September
2013)
Council of Europe Research Report on The New Admissibility Criterion under Article
353 of the Convention Case Law Principles Two Years On (June 2012)
lthttpwwwechrcoeintDocumentsResearch_report_admissibility_criterion_ENGpdf
lt (accessed September 12 2013)
Council of Europe Collected Edition of the Travaux Preparatories of the European
Convention on Human Rights ( BrillampNijhoff 1975 )