Procedural Issues

Question 1

ECHR articles which include how the judges of the court are appointed and what sort of persons they are?

Answer 1

Art 19- 23 ECHR

Question 2

Which Protocol brought in the changes from the old-political system for determining applications under the ECHR to a judicial system?

Answer 2

Protocol 11 - came into effect in 1998
created 1 court undertaking all the work of the European Commission and judicial court.
Provided direct access to the court and removed decision-making powers away from the Committee of Ministers (the political body)

Question 3

Definition of a protocol

Answer 3

A protocol to the Convention is a text which adds one or more rights to the original Convention or amends certain of its provisions.
Protocols which add rights to the Convention are binding only on those States that have signed AND ratified them; a State that has merely signed a protocol without ratifying it will not be bound by its provisions.

Question 4

Which Protocol brought changes to admissibility criteria in Strasbourg to increase the effectiveness and stream-line the court system?

Answer 4

Protocol 14 - came into force in June 2010

Question 5

Four policies which Protocol 14 brought into force?

Answer 5

1. treatment of clearly inadmissible cases - applications which are clearly inadmissible to be dealt with by a single judge assisted by non-judicial rapporteurs, rather than by a three-judge committee.
2. new admissibility criterion - relating to the degree of disadvantage suffered by the applicant, aimed at discouraging applications from persons who have not suffered significant disadvantage. Court may reject a complaint if the complainant has not suffered any “substantial disadvantage.”
3. changes to judges’ term of office - now just one single 9yr term.
4. empowered the Committee of Ministers - gave them the power to bring proceedings before the Court where a State refuses to comply with a judgment. Also, gives them a new power to ask the Court for an interpretation of a judgment.

Question 6

What Article governs individual applicants under the ECHR?

Answer 6

Art.34 ECHR

Question 7

What Article governs inter-state applicants under the ECHR?

Answer 7

Art. 33 ECHR

Question 8

TWO conditions that an individual applicant has to fulfil to make an application under art.34 ECHR

Answer 8

 he or she must fall into one of the categories of petitioners mentioned in Article 34; and
 must be able to make out a case that he or she is the victim of a violation of the Convention - Vallianatos and Others v. Greece.

Question 9

Case which is authority for the fact that an individual applicant must be able to prove that he or she is the victim of a violation of the Convention to make an application under art.34 ECHR

Answer 9

Vallianatos and Others v. Greece
FACTS - about the blanket exclusion of same-sex couples living in Greece from registering a ‘civil union’ – a legal form of partnership available to opposite-sex couples.
HELD - that the charity making a claim on behalf of couples wasn’t a a victim under art.35 but that the other couples were since they did suffer ‘direct and immediate adverse consequences as a result of their inability to enter into a civil union’ and that even though the applicants had not exhausted the domestic remedies (as required by Article 35(1) of the Convention) available to them the case is admissible because the applicants had no effective domestic remedy in practice and in law available to them.

Question 10

Categories of petitioners under art.34 ECHR?

Answer 10

1. physical persons - only brought by living persons or on their behalf, violation occurred within a Member state.
2. legal persons - only if they’re an NGO within the meaning in art.34, including any participation in the exercise of governmental powers or run a public service under government control
3. any group of individuals - but can’t be a public authority or government body acting through the group of individuals against their own state.

Question 11

characteristics of direct victims under art.34 ECHR

Answer 11

1. even if domestic law doesn’t define them as victims they can still be within art.34 because they define it autonomously
2. an applicant must be able to show that he or she was “directly affected” by the measure complained of - authority in Burden v UK and Lambert and Others v France.

Question 12

Authority for an applicant having to show that he or she was “directly affected” by the measure complained of to be a direct victim under art.34 ECHR

Answer 12

Burden v UK

Lambert and Others v France

Question 13

Who can be indirect victims under art.34 ECHR?

Answer 13

1. if a victim died before the application then the person with the requisite legal interest as next-of-kin to introduce an application raising complaints related to the death or disappearance of his or her relative
2. close family members can be an indirect victim of an alleged violation of art.2 ECHR e.g. Van Colle v UK, Tsalikidis and Others v Greece
3. next-of-kin can also bring other complaints, such as under Articles 3 and 5 ECHR on behalf of deceased or disappeared relatives, provided that the alleged violation is closely linked to the death or disappearance giving rise to issues under Art.2.

Question 14

Two examples of close family members being able to make an application under art.34 ECHR as indirect victims

Answer 14

Both were violations of Art.2 ECHR -
Van Colle v UK
Tsalikidis and Others v Greece

Question 15

What is the deadline for applications?

Answer 15

The complaint has to be lodged within 6 months of the court of final appeal’s judgement in the respective country. Delayed complaints will be dismissed

Question 16

Can potential victims make an application under art.34 ECHR?

Answer 16

YES - BUT…
In order to be able to claim to be a victim in such a situation, an applicant must produce reasonable and convincing evidence of the likelihood that a violation affecting him or her personally will occur
- mere suspicion or conjecture is insufficient

example - Dudgeon v UK (1981)
where a law punishing homosexual acts was likely to be applied to a certain category of the population, to which the applicant belonged

Question 17

What article contains the admissibility criteria?

Answer 17

Article 35 - apply both inter-state and individually

Question 18

Example of the use of Art.35(3)(b) ECHR to declare a case inadmissible at an early stage

Answer 18

Ionescu v Romania (2010)
- man tried to bring a case before the ECtHR regarding him not being able to recline his seat while he was travelling by coach (arguing it was a contractual), claiming that he didnt have a fair trial. The case was struck out because it was held that the 90 euro ticket wasn’t a significant disadvantage to him.

Question 19

Extra criteria for individual applicants under art.34 ECHR?

Answer 19

1. must not be anonymous

2. same applicant can’t bring the same matter before the Strasbourg court

Question 20

Which Article is about friendly settlements?

Answer 20

Art.39 ECHR
- but all friendly settlements must have respect for family life so the court can veto a friendly settlement if they want to make a judgment but this is rare

Question 21

Why are friendly settlements (art.39) beneficial?

Answer 21

1. if one party thinks they may lose the case they can settle it confidentially
2. The state won’t be found in breach of the Convention if there’s a friendly settlement
3. they can’t be certain what the courts decision might be so by the time they’ve got to this stage they’ve been fighting the case for years and might want to settle it
4. more efficient for the courts as they don’t have to deliver a judgment

Question 22

How much has the use of friendly settlements under art.39 increased over the past year?

Answer 22

43%

Question 23

Which Article is about providing just satisfaction for the injured party?

Answer 23

Art.41 ECHR - that is the major remedy available provided that the applicant asked for it

Question 24

3 types of financial payments for just satisfaction awarded under art.41?

Answer 24

1. Pecuniary damages
2. non-pecuniary damages
3. legal costs

Question 25

Article which allows for a referral of a case to grand chamber?

Answer 25

Art.43 ECHR - Within 3 months of a chamber judgment they can ask the grand chamber to re-hear
- which is effectively an appeals process without technically being one because it isn’t a two-tiered court system. Can’t have an appeal within the same court.

Question 26

Which Article ensures that a judgment is implemented?

Answer 26

Art. 46 ECHR
- As amended by protocol 14 - If the state fails to comply with the judgment then the committee of ministers can refer the case back to the court to get a second ruling against that state
BUT… this hasn’t been used yet and can expel a state but that is also seen as too draconian

Question 27

What will Protocol 15 implement if all 47 states ratify it (only 45 have so far)?

Answer 27

Due to pressure from the UK the MSs agreed to change the protocol, not the actual text of convention, to add in subsidiarity and margin of appreciation

• and limit the age of judges - have to be under 65 when states put them forward, then can work for 9ys if they’re appointed. Used to have to retire at 70
• reducing the time period in which applicants can bring a case before the court from 6 months to 4 months.

Question 28

What will Protocol 16 implement?

Answer 28

Provides a new optional power, if states volunteer to become part of it then this protocol will allow individual highest national court to seek advisory opinions from the Strasbourg court
- Will go to the grand chamber which will be able to give advice on convention rights – designed to promote a dialogue between the highest national court and Strasbourg
- It will increase the workload but is believed that in the long run then it may reduce their workload because national courts will implement advisory opinions
10 states have to ratify to bring it into effect – France was the 10th so this has been in effect since 2018

Question 29

What did the President of the ECtHR say in his annual lecture earlier this year were the major challenges before the court?

Answer 29

1. the complex cases being considered by chambers, pending and not yet decided - this is the major workload challenge with several thousand pending complex cases.
2. Also said there was structural problems where states persistently couldn’t comply, states not dealing with the issue of structural problems e.g. thousands of cases from Romania due to prison overcrowding  creating significant numbers of admissible cases
3. warned that Russia would leave the council of Europe, leaving 100s of millions of people in Russia unprotected by the Strasbourg court