Admissibility Criteria Flashcards
Applications to the ECHR
Article 34 = Individual Petition
any “person, non-governmental organisation or group of individuals” may bring a case to the European Court of Human Rights, complaining that a state party to the Convention has breached its obligations.
All admissibility criteria must be satisfied before the ECtHR can legally deal with it.
- found in Articles 1, 34 and 35 of the Convention, though some are set out in case law.
Protocol No. 14 (entered into force on 1st June 2010) made these criteria more stringent
Criteria 1
Has victim status or one of the exceptions to this rule apply
Criteria 2
Has suffered significant disadvantage by reason of the alleged breach of his rights, or the exception applies
Criteria 3
Has exhausted all remedies available in state, or one of the exceptions to this rule applies
Criteria 4
The claim has been made within the four month time limit
Criteria 5
The claim is not manifestly ill-founded
i.e. it is at least arguable
Criteria 6
It is not a duplicate complaint
Criteria 7
Has not breached the rules against abuse of process / anonymity
Criteria 8
The complaint falls within the scope of what the Court can decide, e.g. relates to a Convention right, a State party, within jurisdiction.
Criteria 1: Victim Status
Art. 34 = application must be brought by a person or group who is personally claiming to be the victim of a violation of the Convention ==> have been directly impacted by some action or omission on the part of the state, or if you run the personal risk of being directly affected by law or practice in future
Norris v. Ireland *
the very existence of the law prohibiting private homosexual acts
between men was sufficient to ground victim status, even though the
applicant had never been charged under that legislation.
C.f. Magee v. United Kingdom *
There are limits to the above principle
The Court held that the applicant barrister could not claim to be directly
affected at the time he made his complaint, as he would only face the
possibility of being forced to give the oath if invited to become Queen’s
Counsel and this had not actually happened yet.
There are exceptions however.
e.g. you can bring a claim on behalf of a dead relative alleging a violation of
the right to life
Keenan v. United Kingdom *
the applicant was permitted to bring a case on behalf of her son, who had
committed suicide whilst in prison, claiming that the prison authorities
had failed to vindicate his right to life under Article 2 of the Convention.
In some instances, can bring an application on behalf of another who cannot represent self:
Centre for Legal Resources v. Romania *
the applicant association was permitted because the victim could not
have represented himself, had no next of kin, and had no way of
expressing his wishes.
The rule also means that you cannot bring an action popularis (i.e. the applicant believes that the Convention may contravene a certain right but has not been personally affected by it)
Burden v. United Kingdom
You can lose victim status, cannot bring a case if that happens
Eckle v. Germany
May be lost if:
1. the state officially acknowledges there has been a Convention
violation
2. provides adequate redress to you.
Criteria 2: Significant Disadvantage
Article 35(3)(b) = applicant must have suffered “significant disadvantage” as a result of the claimed violation.
No clear definition of term.
Giusti v. Italy, must consider:
(i) nature of rights violation;
(ii) seriousness of impact of violation on exercise of that right; and
(iii) practical consequences for personal situation.
If an applicant has suffered minor tangible losses, may not have significant disadvantage
Korolev v. Russia *
“tiny and almost negligible loss” of less than €1 = minimal significance
inadmissible
BUT significant disadvantage might arise where rights breach leads to other serious consequences or is serious in principle
Bannikov v. Latvia *
applicant’s complaint of 1 year unlawful detention was too significant to
not be examined given the importance of the right to personal liberty.
Eon v. France *
the applicant was given a suspended fine of €30 for insulting the
President of France.
ECHR = important because public interest expression and the acceptable
levels of criticism in relation to a head of state.
ONLY ONE exception to the general rule that significant disadvantage must be demonstrated - Protocol 15
Article 35: where Court considers that “respect for human rights” requires
an examination of the application on the merits;
Criteria 3: Exhausting Domestic Remedies
Article 35(1) - You must have:
1. gone through domestic legal system of the state alleged to have
committed the violation,
2. using all potential avenues of redress and
3. going to the highest level, before going to ECtHR.
Reflects subsidiary nature of ECtHR
ECtHR ≠ primary forum for human rights disputes
ECHR = final arbiter once all local avenues of redress have been exhausted
X v. Ireland
- Applicant complained of a failure to protect him from having his name
and photograph published following his conviction for manslaughter
- Went straight to the ECHR, redress was available from HC and
Constitution
- Inadmissible because had not exhausted domestic avenues
You must reference Human Rights law throughout your time in domestic courts. You cannot argue only relevant national law and then bring to ECHR
Lee v. UK = gay cake case
- Applicant’s case = UK SC not finding for him, they were breaching his
human rights
- ECHR said = the first time those human rights claims was being made
was in the ECHR, so theoretically he did not give them the opportunity
Three exceptions:
- Only obliged to exhaust domestic remedies which are:
- accessible
- capable of providing redress
- and which offer reasonable prospect of success.
- Apostol v. Georgia *Sigurjonnson v. Iceland *
- No obligation to exhaust remedies if domestic law is so well settled that
any domestic action would inevitably fail
- ONLY if an applicant has good grounds for his absence of faithLL v. UK
- Mere doubts over effectiveness are not enough - Will be excused if there are special circumstances surrounding your failureAkdivar v. Turkey *
- real risk of reprisal if applicants brought claim through domestic courts
- the rule cannot be applied absolutely or automatically.
- account must be taken as to the general legal and political context, and
the personal circumstances of the applicant. - Not expectation where there is substantial evidence showing violation was result of an administrative practice
- repetition of acts accompanied by official tolerance of same.Aksoy v. Turkey * - applicant's injuries, which he alleged were the result of police torture, were seen by a prosecutor who had taken no action.
Criteria 4: 4 Month Time Limit
Article 35 = 4 month time limit to communicate your petition
- No exceptions if you fail to do so
Even where state consents Posti v. Finland Can be brutal McDermott v. Ireland = families of Stardust victims - Time runs from the date of the final decision in domestic court
KCM v. Netherlands - If no domestic remedies, the application must be made within four months of the acts alleged to violate the Convention
Hazar v. Turkey - “Continuing violation” = time starts to run from the date on which the violation eventually comes to an end
- The applicant must have communicated the complaint in some way – even in an informal or truncated manner – to the ECHR
- Is this a good time limit? EXTREMELY SHORT
- Only justification/benefit = reduction in case numbers- what about countries where access to justice is not good? - zero court discretion = extremely dangerous = certain important, meritorious cases maybe cut out because of arbitrary timeline
Criteria 5: Manifestly Ill-Founded
- Application must present an arguable or prima facie case that the Convention has been violated
- i.e. assuming what you say is true, you have some prospect of winning
on the merits. - Will be rejected as manifestly ill-founded where case law makes clear that no possible violation of Convention arises from acts you are complaining about.
- Generally, ECtHR will take allegations at face value and will not scrutinise credibility.
- However, if some strong reason to doubt veracity of allegations, may be deemed manifestly ill-founded.
- the Court goes no further in considering the merits of the case
Criteria 6: Duplication
- Article 35(2) = where it is “substantially the same as a matter which has already been examined by the Court” = inadmissible
- If ECtHR has already ruled on your complaint and you make the same complaint without adding anything new, it is inadmissible.
- BUT the fact that you are complaining about something that another person has also complained about does not render inadmissible.
- Article 35(2) = further, ECtHR must reject any complaint which is substantially the same as a matter which has “already been submitted to another procedure of international investigation or settlement”.
POA v. United Kingdom - subject-matter of this application has already been raised before the ILO Committee on Freedom of Association
