Last Updated on April 9, 2019 by LawEuro
Overview of the Case-law of the ECHR 2017
Other Convention provisions
Restrictions not prescribed by the Convention (Article 18)
The Merabishvili v. Georgia[228] judgment concerned Article 18 read in conjunction with Article 5 of the Convention.
The applicant was a former Minister of Internal Affairs and former Prime Minister of Georgia. At the relevant time, he was the leader of the main opposition party. He was arrested and held in pre-trial detention on charges of, inter alia, abuse of power, election fraud and misappropriation of public funds. He disputed the necessity of his pre-trial detention, arguing that the real objectives were, in the first place, to remove him from the political scene and, secondly, to obtain information from him (regarding the death in 2005 of a former Prime Minister and the bank accounts of a former President). In this latter respect, the applicant alleged that he had been covertly taken out of his cell during the night and taken to the office of the head of the Prison Authority where the then Chief Prosecutor had questioned him on these two matters.
The applicant complained under Article 5 §§ 1, 3 and 4 and Article 18 of the Convention. The Chamber did not consider it established that the purpose of his arrest and detention was to remove him from the political scene but found that he had been detained for a legitimate law-enforcement purpose, as well as for the unlawful purpose of obtaining information from him. It found no violation of Article 5 § 1, a violation of Article 5 § 3, that it was not necessary to examine his complaint under Article 5 § 4 and that there had been a violation of Article 18 in conjunction with Article 5 § 1. The Grand Chamber arrived at the same conclusion.
This was the first occasion the Grand Chamber had analysed Article 18 of the Convention and it is the central focus of this judgment. Certain aspects are worth noting.
(i) The judgment provides a comprehensive review of Article 18 case-law to date: beginning with the case-law of the former Commission (the first detailed examination being in Kamma v. the Netherlands[229]); continuing with the case-law of this Court, before and after its first finding of a violation of Article 18 in Gusinskiy v. Russia[23]; and ending with the Court’s recent findings in Ilgar Mammadov v. Azerbaijan[231] and Rasul Jafarov v. Azerbaijan[232]. This review indicated that three matters required clarification: whether Article 18 allowed for a more objective assessment of the presence of an ulterior motive than proof of “bad faith”, namely, proof of a “misuse of power”; the requirement of “direct and incontrovertible proof” (sourced from Khodorkovskiy v. Russia[233]) which had not been consistently relied upon since then and was absent from recent Article 18 judgments; and how to analyse a case characterised by a plurality of purposes.
(ii) As a general interpretive point, the Grand Chamber pointed out the similarity between Articles 14 and 18. While Article 18 does not have an independent existence, complementing as it does other Articles of the Convention, it is an “autonomous” requirement which means that Article 18 can be breached even if there has been no breach of the Article in conjunction with which it is relied on.
(iii) Since the Grand Chamber had found that the applicant’s arrest and pre-trial detention had been carried out for a purpose prescribed by Article 5 § 1 (c), and given the applicant’s allegations, it was necessary to determine the approach to be adopted in cases where it is alleged that a right was restricted for an ulterior purpose in addition to the one prescribed by the Convention (plurality of purposes).
In this respect, three options were open to the Grand Chamber: the legitimate purpose expunged the ulterior purpose; the mere presence of the ulterior motive contravened Article 18; or a form of intermediary solution, which was the option adopted by the Grand Chamber. Relying on similarities between Article 18 and the second paragraph of other Articles such as Articles 8 to 11, as well as Article 5 § 1, and thus inspired by the Court’s approach in those contexts, the Grand Chamber found that a restriction can be compatible with the substantive Convention provision which authorises it because it pursues an aim permissible under that provision, but can still infringe Article 18 because another purpose not prescribed by the Convention was “predominant”. This interpretation was consistent with the case-law of national courts and of the Court of Justice of the European Union, especially appropriate in this case since the travaux préparatoires clearly indicate that Article 18 was meant to be the Convention version of the administrative-law notion of “misuse of power”. Which purpose was predominant would depend on all the circumstances and the Court would have regard, notably, to the “nature and degree of reprehensibility of the alleged ulterior purpose” and to the fact that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law.
(iv) As to how it could be established that there was an ulterior purpose and that it was predominant (question of proof), the Grand Chamber confirmed that it would adhere to its usual approach, there being no reason to restrict itself to any special standard of proof. The judgment goes on to outline comprehensively the three aspects of that usual approach: in the first place, the burden of proof is not borne by one or other party because the Court examines all material before it irrespective of its origin; secondly, the standard of proof is “beyond reasonable doubt” (not coextensive with the domestic-law standard in criminal cases); and, thirdly, the Court is free to assess not only the admissibility and relevance but also the probative value of each item of evidence before it.
Importantly in the context of Article 18, the Grand Chamber clarified that circumstantial evidence means information, about the primary facts, or contextual facts or sequences of events, which can form the basis for inferences about them (the Grand Chamber referred to Ilgar Mammadov, cited above, § 142, and Rasul Jafarov, cited above, § 158). Accordingly, reports and statements by international observers, NGOs or the media as well as decisions of other national/international courts are often taken into account, in particular to shed light on the facts or to corroborate findings made by the Court.
(v) Finally, the Court applied those principles to the two allegations of the present applicant. As to the first, and despite the fraught political backdrop, it had not been shown that the predominant purpose of his pre-trial detention was to hinder his participation in Georgian politics rather than to ensure the proper conduct of the criminal proceedings against him. As to the second, the Grand Chamber considered that it could draw inferences from the available material and the authorities’ conduct to find the applicant’s allegations, concerning his covert removal from his prison cell to obtain information from him, to be sufficiently convincing and therefore proven. As to whether this was the predominant purpose of his detention, the Grand Chamber clarified that, where the restriction of a Convention right amounted to a continuous situation, its chief purpose had to remain the one prescribed by the Convention throughout its duration in order for it not to contravene Article 18 and it could not be excluded that the initial purpose would be supplanted by another one as time went by. The Court was satisfied that, during the continuing situation of the applicant’s pre-trial detention, the predominant purpose of this restriction of his liberty had changed. While in the beginning it was the investigation of offences based on a reasonable suspicion, later on the predominant purpose had become the wish to obtain information from the applicant, as demonstrated by his covert removal from his cell. This was sufficient to find a violation of Article 18 of the Convention.
Striking out (Article 37)
The De Tommaso v. Italy[234] judgment concerned the imposition of preventive measures on an individual considered to be a danger to society.
In 2008 the District Court, considering that the applicant represented a danger to society, imposed special police supervision orders for two years. The decision was overturned on appeal seven months later, the appeal court having found that the applicant had not been a danger to society when the measures were imposed. The applicant did not have a public hearing at which to contest the measure.
The applicant complained, inter alia, under Article 6 of a lack of a fair and public hearing. The Government submitted a unilateral declaration accepting a violation of Article 6 as regards the lack of a public hearing. The Grand Chamber found that Article 6 applied and had been violated.
Although Chambers had done so previously on several occasions, this was the first time the Grand Chamber had examined a request to strike out an application or part thereof on the basis of a unilateral declaration, so the judgment contains a comprehensive review of the relevant principles. The Grand Chamber concluded that, there being no previous decisions relating to the applicability of Article 6 to proceedings for the application of preventive measures (leaving aside the restrictions on the use of property), the conditions for striking out that part of the application had not been met.
The Court delivered a striking-out judgment in the case of Burmych and Others v. Ukraine[235]. Faced with the ineffective execution of a pilot judgment that had identified a structural problem resulting in violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the Grand Chamber was required to decide whether the Court had to continue to examine the resulting follow-up individual applications. It concluded that no useful purpose was served in terms of the Convention’s aims in its continuing to deal with those applications and decided to strike them out pursuant to Article 37 § 1 (c) of the Convention and to transmit them to the Committee of Ministers of the Council of Europe in order for them to be dealt with in the framework of the general measures of execution of the pilot judgment.
Just satisfaction (Article 41)
The issue in Nagmetov v. Russia[236] was whether the Court was competent to make an award for non-pecuniary damage in the absence of a properly submitted claim.
The applicant’s complaint concerned his son’s death, caused by a tear-gas grenade fired during a demonstration against corruption of public officials. In 2015 the Chamber found violations of the substantive and procedural limbs of Article 2 of the Convention. In his application form, the applicant claimed “compensation for the related violations of the Convention”. The Court’s Registry later requested, in accordance with its normal procedure, his just-satisfaction claims, reiterating the consequences of failing to comply with Rule 60 of the Rules of Court (no just-satisfaction award or a partial award, even if the applicant had previously indicated his wishes in that regard). No claim was submitted. The applicant’s representative requested more time (pleading a postal mix-up) and this was accorded. Again, no claim was submitted. The Chamber made a just-satisfaction award in the sum of 50,000 euros (EUR) for non-pecuniary damage. Since no claim in respect of costs and expenses had been made, the Chamber made no award in that respect.
The Grand Chamber confirmed the Chamber’s findings as regards Article 2 of the Convention. It also awarded EUR 50,000 in respect of non-pecuniary damage. Since no other claim had been made under Article 41, no other award was made.
(i) The case essentially concerns the circumstances in which the Court will award compensation for non-pecuniary damage in the absence of a properly submitted claim.
The Grand Chamber noted, in the first instance, that Article 41 itself did not impose any particular procedural obligations, (non-)compliance with which would circumscribe an award. However, Rule 60 and the Practice Direction on just-satisfaction claims established a procedural framework for this judicial function. The Court’s prevailing practice was to reject claims not detailed at the communication stage in accordance with the Rules, even if mentioned in the earlier application form. The claim in respect of non-pecuniary damage had not been properly made in the present case: neither the original request in the application form, nor reliance by the applicant on the Chamber judgment before the Grand Chamber, could amount to a “claim” within the meaning of Rule 60 (read together with Rule 71 § 1 of the Rules of Court).
As to whether the Court was, nevertheless, competent to make a just satisfaction award, the Grand Chamber reviewed in some detail the relevant guiding principles, rules and approaches, from which it confirmed that no Convention provision precluded it from exercising some discretion. It stated that the Court
“remains empowered to afford, in a reasonable and restrained manner, just satisfaction on account of non-pecuniary damage arising in the exceptional circumstances of a given case, where a ‘claim’ has not been properly made in compliance with the Rules of Court” (paragraph 76).
Were the Court to envisage exercising this discretion, the parties’ submissions should be sought and the following two-part test should be applied, so that an award could be considered if:
– a number of “prerequisites” had been met: whether there were unequivocal indications that the applicant wished to obtain monetary compensation, that that interest had been expressed in relation to the same facts underlying the Court’s finding of a violation and that there was a causal link between the violation and the non-pecuniary damage in respect of which the applicant claimed compensation; and
– there were “compelling considerations” in favour of making such an award: the particular gravity and impact of the violation and, if relevant, the overall context in which the breach occurred, as well as whether there were reasonable prospects of obtaining adequate “reparation” (within the meaning of Article 41) at the national level.
Applying that test to the particular circumstances of the case, the Grand Chamber found that the case disclosed exceptional circumstances which called for an award of just satisfaction in respect of non-pecuniary damage despite the absence of a properly made claim. In so finding, it found the prerequisites to be present. It emphasised the gravity of, in particular, a lengthy and defective investigation of a death inflicted by an agent of the State and the fact that there was no reasonable prospect of obtaining adequate reparation.
(ii) As to whether these principles apply to improperly made claims for compensation for pecuniary damage or for costs and expenses, the Grand Chamber confined its remarks to a brief statement that, since no such claims had been made, no award would be made.
The Chiragov and Others v. Armenia[237] and Sargsyan v. Azerbaijan[238] judgments concerned the continuing loss of use of property of persons displaced by the Nagorno-Karabakh conflict in 1992.
A number of points are worth noting and of particular relevance for Article 41 assessments in cases arising from a conflict context.
The Grand Chamber premised its assessment by emphasising the “exceptional” nature of the cases.
In the first place, the Nagorno-Karabakh conflict took place ten years before Armenia and Azerbaijan ratified the Convention. The States’ Convention responsibility arose, therefore, not out of damage from the conflict itself, but from the States’ continuing failures since ratification in 2002 (compare Cyprus v. Turkey[239]). Accordingly, only pecuniary and non-pecuniary losses incurred since ratification were to be compensated under Article 41 of the Convention.
Secondly, the underlying conflict remained unresolved. The Grand Chamber therefore highlighted the number of applications pending before the Court by persons displaced because of the conflict (approximately a thousand) and the potential for further applications (over a million people were still so displaced). The Grand Chamber also emphasised in this regard, as it had in the principal judgments, the relevance of the principle of subsidiarity. That principle had a political dimension: the failure by Armenia and Azerbaijan to honour their Convention accession commitments to find a political solution to the conflict. It also had a legal dimension: the Court was not to be used as a court of first instance to resolve large numbers of cases arising out of an unresolved conflict. In that connection, the Court repeated the importance of the adoption by the States of general measures at national level such as the creation of a property-claims mechanism.
In Chiragov and Others, the six applicants were Azerbaijani Kurds who had been unable to return to their homes and property in the district of Lachin in Azerbaijan since they fled the Nagorno-Karabakh conflict in 1992. In Sargsyan the applicant, an ethnic Armenian, fled his village in 1992 during the Nagorno-Karabakh conflict. The village was on the north and Azerbaijani bank of a river which constituted the border with Nagorno-Karabakh, an area still inaccessible for security reasons. On 16 June 2015 the Grand Chamber found in two principal judgments[240], as regards the period falling within its temporal jurisdiction (Armenia ratified the Convention on 26 April 2002 and Azerbaijan on 15 April 2002), that there had been continuing violations as regard the applicants’ lack of access to their properties and homes (Article 8 and Article 1 of Protocol No. 1) and as regards the lack of effective remedies (Article 13). In Chiragov and Others, it found, in particular, that no aim had been indicated that could justify the denial of access of the applicants to their property and homes and the lack of compensation, which constituted a continuing violation of Article 1 of Protocol No. 1. In Sargsyan, while the applicant’s inability to access his property and home was explained by ongoing security considerations, the failure by the State to take alternative measures to restore his property rights and to compensate him for the loss of enjoyment of the property placed a disproportionate burden on him and constituted a continuing violation of Article 1 of Protocol No. 1.
In both cases, the question of just satisfaction was reserved and is the subject of the present judgments.
Restitution not being realistically possible in the prevailing conditions, the Grand Chamber considered that compensation was appropriate just satisfaction. While some pecuniary loss had to be compensated (loss of income and increased rental and/or living expenses), the Court’s assessment was burdened with many uncertainties and difficulties mainly linked to the unresolved conflict and the passage of time (approximately twenty-five years had passed since the applicants fled the conflict). Finding that each applicant was entitled to compensation for pecuniary and non-pecuniary damage and that these were closely connected, and given the difficulties in calculating such damage, the Grand Chamber awarded a global sum of EUR 5,000 to each of the applicants, as well as legal costs and expenses, emphasising that the award was made pending a political solution being found to the Nagorno-Karabakh conflict.
In both cases, interesting issues were raised by the deaths of two of the applicants (the sixth applicant in Chiragov and Others and the applicant in Sargsyan) after the introduction of their applications and the pursuit of the applications by their children. In the first place, the children’s standing had already been addressed in the 2011 admissibility decision[241], so their entitlement to claim compensation was examined at the Article 41 stage (compare the examination of the admissibility of allegedly belated just-satisfaction submissions in Cyprus v. Turkey[242]). Secondly, the Government argued that, since the cases concerned a continuing violation, any claims in respect of non-pecuniary damage were extinguished with the applicants’ deaths. The Grand Chamber rejected this argument finding that family members, who were entitled to pursue an application after an applicant’s death, could also take an applicant’s place as regards claims for compensation for non-pecuniary damage arising even after his death (relying on Ernestina Zullo v. Italy[243]). The Court did note that such an award might not be made when an application was pursued by the administrator of an applicant’s estate (Solomonides v. Turkey[244]) or when the next of kin pursuing the application were not personally affected by it (Malhous v. the Czech Republic[245]). However, the children who had pursued the applications in the present cases were considered to have been personally affected by the relevant breaches: both as family members who fled and were affected by the loss of enjoyment of the property and as successors to the applicants’ property rights (the right to use the land and ownership of the house).
Execution of pilot judgments (Article 46)
The Burmych and Others v. Ukraine[246] judgment examined the respective roles of the Court and the Committee of Ministers as regards individual cases arising out of a failure to execute a pilot judgment.
The five applications lodged in this case concerned prolonged non-enforcement of domestic final judicial decisions. They raised issues similar to those examined in the pilot judgment of Yuriy Nikolayevich Ivanov v. Ukraine[247] (“the Ivanov pilot judgment”) and formed part of a larger group of pending follow-up cases. The Ivanov pilot judgment concluded as to a violation of Article 6 § 1 and Article 1 of Protocol No. 1 and, under Article 46, required that Ukraine set up, within one year, effective domestic remedies capable of securing redress for delayed enforcement. Pending the adoption of those measures, the Court adjourned pending and future similar cases reserving the right to resume examination if necessary to ensure the effective observance of the Convention. Thereafter, the influx of follow-up cases was such that the Court twice resumed its examination of such cases, before finally adjourning matters pending the outcome of the present cases, which were relinquished to the Grand Chamber in December 2015. By the date of the Grand Chamber’s judgment, there were over 12,000 Ivanov-type cases pending before the Court, with approximately 200 introduced per month since the beginning of 2016.
The Committee of Ministers, in the context of its supervision of the execution of the Ivanov pilot judgment, adopted in June 2017 a further Interim Resolution calling upon the authorities to adopt as a matter of priority the general measures required to fully comply with the Ivanov pilot judgment.
This judgment is noteworthy because, faced with the ineffective execution of a pilot judgment, the Grand Chamber was required to decide whether the Court had to continue to examine the resulting follow-up individual applications and thus was required to clarify the respective roles of the Court and of the Committee of Ministers in that context.
In particular, with the proliferation of structural and systemic issues and the phenomenon of repetitive follow-up cases, the pilot-judgment procedure was developed to reduce the threat to the effective functioning of the Convention system and to facilitate an effective resolution of the dysfunction in the national legal order. The central question was whether, when a pilot judgment is not executed and those objectives are not achieved, resulting in an abundance of follow-up individual applications, the Court should continue to examine the follow-up cases having regard to Articles 19 and 46 of the Convention and, if not, whether the Court had the power under Article 37 § 1 (c) to strike those applications from its list of cases.
(i) As regards Article 19 and the question of the requirement to deliver individual decisions in “cases where there was no longer any live issue”, the Court, relying on the post pilot-judgment decision in E.G. v. Poland and 175 other Bug River applications[248], found that the Court’s role under Article 19 could not be considered to require “individualised financial relief in each and every repetitive case arising from the same systemic situation”. By adopting the pilot judgment, the Grand Chamber considered that the Court had discharged its functions under Article 19 of the Convention.
As to the conclusions to be drawn in light of Article 46 of the Convention, the Court considered that the division of roles between the Court and the Committee of Ministers was clear. While the Court might assist the State in fulfilling its obligations under Article 46 (by seeking to indicate in a pilot judgment the type of measure to be taken to put an end to a systemic problem identified), it was for the Committee of Ministers to supervise the execution of that judgment and to ensure that the State had discharged its legal obligation under Article 46, including the taking of such general remedial measures as may be required by the pilot judgment. Follow-up cases resulting from ineffective execution of the pilot judgment involved problems of a financial and political nature, the resolution of which lay outside the Court’s competence. They could only be adequately addressed between the State and the Committee of Ministers, on whom it was incumbent to ensure the pilot judgment was fully implemented through general measures and appropriate relief to individual applicants.
Having regard therefore to the respective competences of the Court and the Committee of Ministers under Articles 19 and 46 of the Convention, the Grand Chamber concluded that no useful purpose was served in terms of the Convention’s aims in its continuing to deal with the individual follow-up cases.
(ii) Moreover, the Grand Chamber went on to find that the Court could and should strike out those applications under Article 37 § 1 (c) of the Convention. For the reasons already evoked in the judgment, it was considered not “justified” to continue with the examination of those cases and that “respect for human rights” did not require such an examination by the Court. Indeed, it was considered that the interests of the individual applicants would be better served in the execution process.
(iii) Finally, and as in previous pilot judgments, the Grand Chamber determined the procedure to be adopted as regards other pending and future cases but, in this instance, it went one step further. The Grand Chamber found that it had the power to join to the present five cases (of which it had been seised under Article 30 of the Convention) all follow-up Ivanov-type applications pending before the Court (the Grand Chamber thereby considering itself seised of those cases also). It proceeded to strike out all those applications (namely, the initial five applications as well as over 12,000 pending applications). Future applications might also be struck out, unless otherwise inadmissible under Article 35 of the Convention. The Grand Chamber noted that the decision to strike out applications was without prejudice to the Court’s power to restore applications to its list of cases and, in that respect, cautioned that it would reassess the situation within two years.
____________________
228. Merabishvili v. Georgia [GC], no. 72508/13, 28 November 2017.
229. Kamma v. the Netherlands, no. 4771/71, Commission’s report of 14 July 1974, unreported.
230. Gusinskiy v. Russia, no. 70276/01, ECHR 2004-IV.
231. Ilgar Mammadov v. Azerbaijan, no. 15172/13, 22 May 2014.
232. Rasul Jafarov v. Azerbaijan, no. 69981/14, 17 March 2016.
233. Khodorkovskiy v. Russia, no. 5829/04, 31 May 2011.
234. De Tommaso v. Italy [GC], no. 43395/09, ECHR 2017. See also under Article 5 (Right to liberty and security) above, Article 6 § 1 (Right to a fair hearing in civil proceedings – Applicability) above and Article 2 of Protocol No. 4 (Freedom of movement) above.
235. Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al., 12 October 2017. See also under Article 46 (Execution of pilot judgments) below.
236. Nagmetov v. Russia [GC], no. 35589/08, 30 March 2017.
237. Chiragov and Others v. Armenia (just satisfaction) [GC], no. 13216/05, 12 December 2017.
238. Sargsyan v. Azerbaijan (just satisfaction) [GC], no. 40167/06, 12 December 2017.
239. Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001-IV.
240. Chiragov and Others v. Armenia [GC], no. 13216/05, ECHR 2015, and Sargsyan v. Azerbaijan [GC], no. 40167/06, ECHR 2015.
241. Chiragov and Others v. Armenia (dec.) [GC], no. 13216/05, 14 December 2011.
242. Cyprus v. Turkey (just satisfaction) [GC], no. 25781/94, §§ 13-29, ECHR 2014.
243. Ernestina Zullo v. Italy [GC], no. 64897/01, §§ 115-16 and 148-49, 29 March 2006.
244. Solomonides v. Turkey (just satisfaction), no. 16161/90, 27 July 2010.
245. Malhous v. the Czech Republic [GC], no. 33071/96, 12 July 2001.
246. Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al., 12 October 2017.
247. Yuriy Nikolayevich Ivanov v. Ukraine, no. 40450/04, 15 October 2009.
248. E.G. v. Poland and 175 other Bug River applications (dec.), no. 50425/99, ECHR 2008 (extracts).
Leave a Reply