{"id":678,"date":"2019-04-08T18:18:05","date_gmt":"2019-04-08T18:18:05","guid":{"rendered":"https:\/\/laweuro.com\/?p=678"},"modified":"2019-04-09T07:01:06","modified_gmt":"2019-04-09T07:01:06","slug":"exhaustion-of-domestic-remedies-article-35-%c2%a7-1","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=678","title":{"rendered":"Jurisdiction and admissibility \/ Overview of the Case-law of the ECHR 2017"},"content":{"rendered":"

Overview of the Case-law of the ECHR 2017<\/p>\n

Jurisdiction and admissibility<\/h2>\n
    \n
  1. Admissibility (Articles 34 and 35)<\/a><\/li>\n
  2. Exhaustion of domestic remedies (Article 35 \u00a7 1)<\/a><\/li>\n
  3. Matter already examined by the Court (Article 35 \u00a7 2 (b))<\/a><\/li>\n<\/ol>\n

    <\/a>Admissibility (Articles 34 and 35)<\/strong><\/p>\n

    <\/a>Exhaustion of domestic remedies (Article\u00a035 \u00a7\u00a01)<\/strong><\/p>\n

    The decision in K\u00f3sa v. Hungary[1] raised the issue whether public-interest litigation can exonerate an applicant from bringing his or her own domestic court proceedings.<\/p>\n

    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\u00a014 of the Convention in conjunction with Article\u00a02 of Protocol No.\u00a01.<\/p>\n

    The applicant did not bring domestic proceedings to contest the lawfulness of the authorities\u2019 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.\u00a0The 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.<\/p>\n

    The case is interesting in that the Court had to address the sufficiency of public-interest litigation in terms of the requirements of Article\u00a035 \u00a7\u00a01 of the Convention and in particular whether such litigation could exonerate an individual from taking his or her own court proceedings.<\/p>\n

    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\u00a035 \u00a7\u00a01. Interestingly, it noted that<\/p>\n

    \u201c[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 \u2018practical and effective\u2019 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\u201d (paragraph\u00a057).<\/p>\n

    However, on the facts of the applicant\u2019s case the Court noted that although the Supreme Court\u2019s judgment in the public-interest case concerned a matter which was closely related to the complaints set out in the applicant\u2019s application form, it did not correspond exactly to her individual situation. It observed that an essential element of the Supreme Court\u2019s finding \u2013 that segregation could not be established on account of the operation of the local faith school \u2013 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.<\/p>\n

    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\u2019s specific complaints, the applicant had failed to exhaust domestic remedies.<\/p>\n

    <\/a>Matter already examined by the Court (Article\u00a035 \u00a7\u00a02 (b))<\/strong><\/p>\n

    The issue before the Court in Harkins v. the United Kingdom[2] was whether a development in the Court\u2019s case-law subsequent to a judgment in an applicant\u2019s case could amount to \u201crelevant new information\u201d for the purposes of Article 35 \u00a7 2 (b) of the Convention.<\/p>\n

    The applicant\u2019s 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 \u201cgrossly disproportionate\u201d, 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 \u201cstill less certain\u201d 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\u2019s 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\u2019s 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\u2019s request to reopen the proceedings. He subsequently lodged a fresh application with the Court. He complained that following the Court\u2019s 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 \u201cgrossly disproportionate\u201d.<\/p>\n

    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 \u00a7 2 (b) (which concerns applications that are \u201csubstantially the same as a matter that has already been examined by the Court\u201d), in particular the scope of the notion of \u201crelevant new information\u201d. 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<\/p>\n

    \u201cwhile 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 (Brum\u0103rescu v. Romania [GC], no.\u00a028342\/95, \u00a7\u00a061, 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.\u201d<\/p>\n

    Interestingly, it further observed that under the second limb of Article 35 \u00a7 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 \u00a7 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.<\/p>\n

    The Court\u2019s approach to the interpretation of Article\u00a035 \u00a7\u00a02 (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 \u2013 and this it qualified as factual information \u2013 that has not previously been considered by the Court (see paragraph\u00a042 and the decision in Kafkaris, cited above, \u00a7\u00a068). The core issue to be decided in the instant case was whether the above-mentioned development of the Court\u2019s case-law following its judgment in Harkins and Edwards by itself constituted \u201crelevant new information\u201d for the purposes of the first limb of Article\u00a035 \u00a7\u00a02 (b) of the Convention. It concluded that the applicant\u2019s Article\u00a03 complaints (see above) were substantially the same as the complaints already examined by the Court in Harkins and Edwards. The Court\u2019s subsequent case-law did not constitute \u201crelevant new information\u201d for the purposes of Article\u00a035 \u00a7\u00a02\u00a0(b) of the Convention. Importantly, it noted (paragraph\u00a056):<\/p>\n

    \u201cThe Court\u2019s 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\u00a080 for permitting revision of the Court\u2019s 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 \u2018reopen\u2019 previously examined cases, provided that he or she were in a position to lodge a fresh application within the six-month time-limit.\u201d<\/p>\n

    ________________<\/p>\n

    1. K\u00f3sa v. Hungary (dec.), no.\u00a053461\/15, 14\u00a0December 2017.<\/p>\n

    2. Harkins v. the United Kingdom (dec.) [GC], no.\u00a071537\/14, ECHR 2017.<\/p>\n

    3. Harkins and Edwards v. the United Kingdom, nos.\u00a09146\/07\u00a0and\u00a032650\/07, 17\u00a0January 2012.<\/p>\n

    4. Vinter and Others v. the United Kingdom [GC], nos.\u00a066069\/09 and\u00a02 others, ECHR 2013 (extracts).<\/p>\n

    5. Trabelsi v. Belgium, no.\u00a0140\/10, ECHR 2014 (extracts).<\/p>\n

    6. Kafkaris v. Cyprus (dec.), no.\u00a09644\/09, 21\u00a0June 2011.<\/p>\n

    7. OAO Neftyanaya Kompaniya Yukos v. Russia, no.\u00a014902\/04, \u00a7\u00a0520, 20\u00a0September 2011.<\/p>\n

    Table of Contents<\/a><\/p>\n