Last Updated on April 9, 2019 by LawEuro
Overview of the Case-law of the ECHR 2017
Jurisdiction and admissibility
- Admissibility (Articles 34 and 35)
- Exhaustion of domestic remedies (Article 35 § 1)
- Matter already examined by the Court (Article 35 § 2 (b))
Admissibility (Articles 34 and 35)
Exhaustion of domestic remedies (Article 35 § 1)
The decision in Kósa v. Hungary[1] raised the issue whether public-interest litigation can exonerate an applicant from bringing his or her own domestic court proceedings.
The applicant was of Roma origin. In the Convention proceedings she claimed that the discontinuance of a free bus service between her home and her integrated primary school meant that, for over two years, her only option had been to attend a local Greek Catholic school which essentially catered for Roma children and provided substandard education. The applicant relied on Article 14 of the Convention in conjunction with Article 2 of Protocol No. 1.
The applicant did not bring domestic proceedings to contest the lawfulness of the authorities’ action from the standpoint of her own personal circumstances. The Government argued that the applicant had not exhausted domestic remedies and her case should therefore be declared inadmissible. The applicant stressed in reply that a non-governmental organisation had brought legal proceedings in the public interest challenging the policy of, among others, the local authority on the ground that it resulted in unlawful segregation of Roma children. The Supreme Court ultimately dismissed the public-interest action on the basis of a domestic legal provision according to which the equal-treatment requirement was not violated where the school (which otherwise had the characteristics of a segregated school in so far as the overwhelming majority of students were of Roma origin) was a faith school chosen voluntarily and in an informed manner by the parents, and the students were not provided with substandard education.
The case is interesting in that the Court had to address the sufficiency of public-interest litigation in terms of the requirements of Article 35 § 1 of the Convention and in particular whether such litigation could exonerate an individual from taking his or her own court proceedings.
It observed that in the instant case the domestic legislation explicitly allowed certain civil-society organisations to bring legal proceedings in defence of a larger group of people affected by a violation, or risk of a violation, of the requirements of equal treatment. Accordingly, it considered that, in principle, it would be conceivable to accept public-interest litigation as a form of exhaustion of domestic remedies for the purposes of Article 35 § 1. Interestingly, it noted that
“[s]uch a proposition would be especially justified in relation to alleged discrimination against a vulnerable group requiring special protection, such as Roma children … Access to justice for members of such groups should be facilitated so as to provide effective protection of rights: the Convention is intended to guarantee rights which are ‘practical and effective’ rather than theoretical and illusory … For the Court, the Hungarian legislation, notably section 20 of the Equal Treatment Act … is a laudable example of that facilitative and protective approach” (paragraph 57).
However, on the facts of the applicant’s case the Court noted that although the Supreme Court’s judgment in the public-interest case concerned a matter which was closely related to the complaints set out in the applicant’s application form, it did not correspond exactly to her individual situation. It observed that an essential element of the Supreme Court’s finding – that segregation could not be established on account of the operation of the local faith school – was that Roma parents freely chose to send their children there and pupils attending the school had not been prejudiced as regards the quality of the education provided. The applicant for her part firmly disputed these conclusions with reference to her own particular circumstances.
Since the public-interest litigation did not provide the national courts with the opportunity to address and thereby prevent or put right the Convention violations alleged by the applicant against the local authority, nor provide the Court with the views of the national courts on the applicant’s specific complaints, the applicant had failed to exhaust domestic remedies.
Matter already examined by the Court (Article 35 § 2 (b))
The issue before the Court in Harkins v. the United Kingdom[2] was whether a development in the Court’s case-law subsequent to a judgment in an applicant’s case could amount to “relevant new information” for the purposes of Article 35 § 2 (b) of the Convention.
The applicant’s extradition was being sought by the government of the United States of America. He was facing charges in Florida of first-degree murder and attempted armed robbery. In his first application lodged with the Court, the applicant claimed among other things that, if convicted, he would receive a mandatory life sentence without the benefit of parole. The decision to extradite him would therefore be in breach of Article 3 of the Convention. In a judgment delivered on 17 January 2012 (Harkins and Edwards v. the United Kingdom[3]), a Chamber of the Fourth Section of the Court found that a mandatory life sentence without the possibility of parole would not be “grossly disproportionate”, and the applicant had not demonstrated that there was a real risk of treatment reaching the Article 3 threshold as a result of his sentence were he to be extradited. In particular, the applicant had not shown that, if convicted, his incarceration would serve no penological purpose, so no Article 3 issue could arise at that time. If there came a time when his incarceration could be shown not to serve any legitimate penological purpose, it was “still less certain” that the Governor of Florida and Board of Executive Clemency would refuse to use their powers to commute his sentence. That judgment became final on 9 July 2012 following the rejection of the applicant’s referral request by a panel of the Grand Chamber. The applicant then brought proceedings before the domestic courts in which he sought to have the final domestic decision rejecting his challenge to the extradition request reopened. He relied on two judgments adopted by the Court following the delivery of the judgment in his case: Vinter and Others v. the United Kingdom[4] and Trabelsi v. Belgium[5]. In Vinter and Others the Grand Chamber ruled among other things that a whole life prisoner was entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Where domestic law did not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground would therefore already arise at the moment of the imposition of the whole life sentence and not at a later stage of incarceration. In Trabelsi a Chamber of the Court held, with reference to the principles laid down in the Vinter and Others judgment, that the applicant’s extradition to the United States of America had been in breach of Article 3 of the Convention as it had exposed him to a risk of a life sentence without the possibility of parole. The domestic court rejected Mr Harkin’s request to reopen the proceedings. He subsequently lodged a fresh application with the Court. He complained that following the Court’s judgment in Trabelsi, his extradition would breach Article 3 of the Convention since the sentencing and clemency regime in Florida did not satisfy the mandatory procedural requirements identified by the Grand Chamber in Vinter and Others. He further submitted that the imposition of a mandatory sentence of life imprisonment without parole would be “grossly disproportionate”.
The judgment is of note in that this is the first occasion on which the Grand Chamber has elaborated on the rationale behind and the principles governing the admissibility requirement contained in the first limb of Article 35 § 2 (b) (which concerns applications that are “substantially the same as a matter that has already been examined by the Court”), in particular the scope of the notion of “relevant new information”. It reiterated that the principal purpose of this admissibility criterion was to serve the interests of finality and legal certainty by preventing applicants from seeking, through the lodging of a fresh application, to appeal against previous judgments or decisions (see paragraphs 41 and 51 of the judgment, referring to the decision in Kafkaris v. Cyprus[6]). Developing this point in its reasoning and with reference to the restrictions applied to requests for revision of its own judgments contained in Rule 80 of the Rules of Court (paragraph 54), it noted that
“while legal certainty constitutes one of the fundamental elements of the rule of law which requires, inter alia, that, where a court has finally determined an issue, its ruling should not be called into question (Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII). If this were not the case, the parties would not enjoy the certainty or stability of knowing that a matter had been subject to a final disposal by the Court.”
Interestingly, it further observed that under the second limb of Article 35 § 2 (b) as interpreted in the case-law (see, for example, OAO Neftyanaya Kompaniya Yukos v. Russia[7]) the Court lacked jurisdiction to deal with any application that has already been submitted to another procedure of international investigation or settlement and contained no relevant new information. For the Court, if its jurisdiction is excluded in relation to an application that falls within the second limb of Article 35 § 2 (b), it must similarly be excluded in relation to an application that falls within the first limb of that Article. This restrictive approach was justified by the need to provide legal stability by indicating to individuals and the State authorities when its supervision is or is not possible.
The Court’s approach to the interpretation of Article 35 § 2 (b) must in view of these considerations necessarily be a rigorous one. It stressed that in order for the Court to consider an application that relates to the same facts as a previous application, the applicant must genuinely advance a new complaint or submit new information – and this it qualified as factual information – that has not previously been considered by the Court (see paragraph 42 and the decision in Kafkaris, cited above, § 68). The core issue to be decided in the instant case was whether the above-mentioned development of the Court’s case-law following its judgment in Harkins and Edwards by itself constituted “relevant new information” for the purposes of the first limb of Article 35 § 2 (b) of the Convention. It concluded that the applicant’s Article 3 complaints (see above) were substantially the same as the complaints already examined by the Court in Harkins and Edwards. The Court’s subsequent case-law did not constitute “relevant new information” for the purposes of Article 35 § 2 (b) of the Convention. Importantly, it noted (paragraph 56):
“The Court’s case-law is constantly evolving and if these jurisprudential developments were to permit unsuccessful applicants to reintroduce their complaints, final judgments would continually be called into question by the lodging of fresh applications. This would have the consequence of undermining the strict grounds set out in Rule 80 for permitting revision of the Court’s judgments … as well as the credibility and authority of those judgments. Moreover, the principle of legal certainty would not apply equally to both parties, as only an applicant, on the basis of subsequent jurisprudential developments, would effectively be permitted to ‘reopen’ previously examined cases, provided that he or she were in a position to lodge a fresh application within the six-month time-limit.”
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1. Kósa v. Hungary (dec.), no. 53461/15, 14 December 2017.
2. Harkins v. the United Kingdom (dec.) [GC], no. 71537/14, ECHR 2017.
3. Harkins and Edwards v. the United Kingdom, nos. 9146/07 and 32650/07, 17 January 2012.
4. Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, ECHR 2013 (extracts).
5. Trabelsi v. Belgium, no. 140/10, ECHR 2014 (extracts).
6. Kafkaris v. Cyprus (dec.), no. 9644/09, 21 June 2011.
7. OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, § 520, 20 September 2011.
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