Last Updated on April 22, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Jurisdiction and admissibility
Jurisdiction of States (Article 1)
The Mozer v. the Republic of Moldova and Russia[2] judgment concerned the lawfulness of detention ordered by courts of the “Moldavian Republic of Transdniestria” (“MRT”). The Grand Chamber examined the issue of “jurisdiction” within the meaning of Article 1 of the Convention with regard to the two respondent States.
Having been detained since 2008, the applicant was convicted in 2010 of defrauding two companies and sentenced to seven years’ imprisonment, five of which were suspended. He complained under Article 5 that his detention by the “MRT courts” had been unlawful. He also complained of his treatment in detention under, inter alia, Articles 3, 8 and 9 of the Convention, read alone and in conjunction with Article 13.
The Grand Chamber found that Russia had violated Articles 3, 5, 8, 9 and 13 of the Convention and that there had been no violation of those provisions by the Republic of Moldova.[3]
In reaching that conclusion, it maintained its previous findings on the jurisdiction of both respondent States as regards the “MRT” (Ilaşcu and Others v. Moldova and Russia[4], Ivanţoc and Others v. Moldova and Russia[5] and Catan and Others v. the Republic of Moldova and Russia[6]).
As regards Russia, the Court confirmed that the “high level of dependency on Russian support provided a strong indication that Russia continued to exercise effective control and a decisive influence over the ‘MRT’ authorities”. The applicant therefore fell within Russia’s jurisdiction within the meaning of Article 1 of the Convention.
As to the Republic of Moldova, the Court reiterated that, while it had no effective control over the acts of the “MRT”, public international law recognised Transdniestria as part of the Republic of Moldova’s territory. This gave rise to positive obligations on it, under Article 1 of the Convention, “to use all the legal and diplomatic means available to it to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention to those living there”.[7]
Admissibility (Articles 34 and 35)
Locus standi (Article 34)
The case of Bulgarian Helsinki Committee v. Bulgaria[8] concerned the applicant organisation’s standing to introduce applications on behalf of deceased minors.
The applicant organisation, acting without a power of attorney, introduced applications on behalf of two adolescents who died in October 2006 and October 2007 in homes for mentally disabled children. It learned about the conditions in the homes and the deaths of the adolescents from a documentary broadcast on television in 2007. The applicant organisation subsequently requested the authorities to initiate criminal proceedings into the conditions in the homes and the circumstances surrounding the deaths.
In the Convention proceedings, the applicant organisation alleged a breach of, among other things, Articles 2 and 3 of the Convention, contending that the lack of medical and other care in the homes had contributed to the deaths of the children.
The applicant organisation was neither a direct nor indirect victim of the alleged violation. The issue before the Court was whether it had locus standi to bring the applications. The Court’s inquiry was directed at establishing whether the applicant’s situation could be considered to be comparable to that of the applicant organisation in the case of Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania[9]. In that case the Court had stressed that it was only in “exceptional circumstances” that it would accept the standing of a party who was neither the direct nor indirect victim of the violation(s) alleged. The Court accepted the applicant organisation’s standing to bring proceedings without a power of attorney for the following reasons (see §§ 104-11 of the judgment): the vulnerability of Valentin Câmpeanu, who suffered from a serious mental disability; the seriousness of the allegations made under Articles 2 and 3 of the Convention; the absence of heirs or legal representatives to bring Convention proceedings on his behalf; the contact which the applicant organisation had with Valentin Câmpeanu and its involvement in the domestic proceedings following his death, during which it had not been contested that it had standing to act on his behalf.
In the instant case the Court was of the view that these factors were decisive for its examination of the question of the Bulgarian Helsinki Committee’s standing.
The Court had no difficulty in accepting that the deceased minors, both mentally disabled and abandoned by their mothers at birth, had not been in a position to complain of the conditions in the care homes. The allegations made on their behalf were serious. Moreover, it found on the facts that, even if the minors’ mothers remained under domestic law their legal representatives, there had never existed any link between them. In essence, there was no one who could look after their interests, and thus no one who could bring Convention proceedings on their behalf. To that extent, their situation was comparable to that of Valentin Câmpeanu. However, it differed in the following two respects. Firstly, the applicant organisation had never had any contact with the minors prior to their deaths. It only became involved in the domestic investigation four to five years later, and at a time when the prosecutor had already taken decisions to discontinue the criminal proceedings. Its role was limited to lodging requests with the prosecutor’s office to reopen the investigations. Leaving aside the issue of locus standi, it is noteworthy that the Court also alluded in this connection to the difficulties which the acceptance of the application would have for the operation of the six-month rule. Secondly, the applicant lacked formal standing in the domestic proceedings, and had no right to challenge in the courts the prosecutor’s discontinuation orders. The Court accordingly concluded that the applications, unlike that lodged on behalf of Valentin Câmpeanu, were incompatible ratione personae with the Convention and therefore inadmissible.
The decision is noteworthy in that it illustrates the difficulties which confront an applicant non-governmental organisation in persuading the Court that “exceptional circumstances” exist such as to justify allowing it to act on behalf of a deceased victim in the absence of a power of attorney.
No significant disadvantage (Article 35 § 3 (b))
The Kiril Zlatkov Nikolov v. France[10] case concerned the application of the “no significant disadvantage” criterion to an applicant’s allegation of discrimination with respect to fair-trial rights.
The applicant, a Bulgarian national, was charged with offences relating to international prostitution. Given the nature of the offences, the applicant’s interview before the investigating judge was not recorded on video. According to the relevant provisions of the Code of Criminal Procedure at the material time, interviews automatically had to be recorded regardless of the offence unless it fell within the following categories: organised crime (the applicant’s case); terrorism; and threats to fundamental national interests. The applicant succeeded in having this provision declared unconstitutional with reference to the principle of equality. However, the ruling of the Constitutional Court had no impact on his case given that, as found by the Court of Cassation, the ruling only benefited persons who were in the applicant’s situation after the date of the publication of the ruling.
In the Convention proceedings, the applicant complained among many other things that he had been discriminated against in the enjoyment of his right to a fair trial, contrary to Article 14 of the Convention read in conjunction with Article 6 and, under Article 13, that he had no effective remedy to contest the discriminatory application of the law to his own situation.
Having regard to the fact that the Constitutional Court had upheld the applicant’s challenge to the constitutionality of the impugned provision, the Court’s decision declaring the complaint under Article 14 combined with Article 6 inadmissible pursuant to Article 35 § 3 (b) of the Convention is of interest. For the Court, there was nothing to indicate that the fact that the applicant’s interview had not been recorded had had any significant consequences either for the fairness of his trial or for his own personal situation. Moreover, respect for human rights did not require it to examine the complaint since the issue raised by the applicant was of historical interest only, in view of the aforementioned ruling of the Constitutional Court. This conclusion is noteworthy since it illustrates the Court’s willingness to give weight to the consideration that the circumstances giving rise to the complaint submitted to it will not be repeated at the domestic level, notwithstanding that the underlying issue has never been addressed in its case-law. Finally, it noted that the applicant’s complaint had been duly examined in the domestic proceedings.
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2. Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, ECHR 2016.
3. See further under Article 5 and Article 13 below.
4. Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004-VII.
5. Ivanţoc and Others v. Moldova and Russia, no. 23687/05, 15 November 2011.
6. Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, ECHR 2012 (extracts).
7. See also under Article 5 below.
8. Bulgarian Helsinki Committee v. Bulgaria (dec.), nos. 35653/12 and 66172/12, 28 June 2016.
9. Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, ECHR 2014.
10. Kiril Zlatkov Nikolov v. France, nos. 70474/11 and 68038/12, 10 November 2016.
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