The admissibility of an application before the European Court of Human Rights

Posted by Justrights on September 9th, 2017

Most individual applicants, as well as many legal advisers or practitioners, lack sufficient expertise concerning the admissibility criteria set out in the European Convention on Human Rights (hereinafter ‘the ECHR’). For this reason, the great majority of applications lodged with the European Court of Human Rights (hereinafter ‘the Court’) are declared inadmissible. This means that they are often dismissed without even examining the merits of the case because the application does not comply with all the admissibility requirements. Inadmissibility decisions are final and cannot be challenged. Therefore, if you do not want the Court to reject your application, it is important that you satisfy all the admissibility criteria.

This article provides a summary of the main concepts and requirements related to the admissibility stage. First of all, it is important to mention the three main categories of petitioners who are allowed to submit an application to the Court pursuant to article 34 of the ECHR. The latter states that “The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto”. Thus, in principle any individual can invoke the protection of the Convention for alleged violations occurred within the jurisdiction of a State Party, regardless of his or her nationality, place of residence, civil status, situation or legal capacity. Legal persons are likewise empowered to file an application to the Court, provided that they are non-governmental organisations, meaning that they do not partake in the exercise of governmental powers or run a public service under governmental control. Lastly, any other group of individuals can lodge an application to the Court.

In order to seek protection before the Court, people who fall into one of the above-mentioned categories of petitioners, must also hold a victim status, i.e., they must claim to be direct or indirect victims of a breach, by a State Party, of the rights enshrined in the Convention or in its Protocols. A direct victim is a person who was directly affected by the measure complained of. An indirect victim is any person to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end, such as family members of dead or disappeared people.

Moving to the conditions that must be met in order to submit an admissible application to the Court, the main ones are the following:

1. Exhaustion of domestic remedies :

Article 35 § 1 states that “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law”. In other words, individuals

1 European Court of Human Rights, Practical Guide on Admissibility Criteria, Council of Europe/European Court of Human Rights, 2014, at 7.

2 Ibidem, at 13, § 9.

3 Ibidem, at 13, §§ 11 and 13.

4 Ibidem, at 14, §§ 17-19.

complaining of violations of their rights must have previously taken their case before the domestic courts of the State Party concerned, up to the highest level of jurisdiction. This rule is an expression of the principle of subsidiarity. National courts should have the opportunity to decide on matters involving the compatibility of national law with the ECHR, so as to be able to prevent or rectify the alleged violations of the Convention. In order to meet the condition of the previous exhaustion of domestic remedies, applicants must comply with all the national rules and procedures in the domestic proceedings. It might be important to know that the requirement in question is not met when an appeal is not accepted for examination at a national level due to a procedural mistake by the applicant.

A few rules ease the applicants’ duties, making it easier for them to have access to the Strasbourg Court. Firstly, if more than one potentially effective domestic remedy is available, the applicant is only required to have used one of them. Secondly, applicants are not obliged to raise a Convention right explicitly in national proceedings provided that the relevant complaint is raised “at least in substance”. In other words, if the applicant has not relied on the specific ECHR provision guaranteeing the allegedly breached right, he or she must have raised arguments to the same or like effect on the basis of domestic law, in order to have given the national courts the opportunity to redress the alleged violation in the first place. Thirdly, applicants are only required to exhaust domestic remedies which are available in theory and in practice at the relevant time and which they can directly institute themselves. This means that Article 35 § 1 of the ECHR refers to remedies that are accessible, capable of providing redress in respect of their complaints and offering reasonable prospects of success.

2. Six-month time-limit :

Pursuant to Article 35 § 1 of the ECHR, applications must be lodged with the Court within six months from the last judicial decision in the case, which will usually be a judgment delivered by the highest court in the State Party concerned. Time starts to run on the day following the date on which the final decision has been pronounced in public, or on which the applicant or his/her representative has had sufficient knowledge of it. The time-limit expires six calendar months later, regardless of the actual duration of those calendar months. The Court applies its own criteria (i.e. autonomous from the national ones) for the calculation of the six-month time-limit. The fact that the last day of the six-month period falls on a Saturday, a Sunday or an official holiday and that in such a situation, under domestic law, time-limits are extended to the following working day, does not affect the determination of the dies ad quem.

5 Ibidem, at 22, §§ 61 and 63.

6 Ibidem, at 23, § 65.

7 Ibidem, at 23, § 66.

8 Ibidem, at 23, § 67.

9 Ibidem, at 24, § 68.

10 Ibidem, at 31, § 105.

11 Ibidem, at 31, § 107.

In cases where it is clear from the outset that no effective remedy is available for the applicant, the six-month period runs from the date on which the act complained of took place or from the date on which the applicant was directly affected by or became aware of such an act or had knowledge of its adverse effects.

In order to interrupt the running of the six-month period, the applicant must submit a completed application form in compliance with Rule 47 of the Rules of Court. Paragraph 6 (a) of the latter Rule provides that “The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall be the date on which an application form satisfying the requirements of this Rule is sent to the Court. The date of dispatch shall be the date of the postmark”.

It is noteworthy that the six-month period for lodging an application with the Court will be reduced to four months, as provided in Protocol No. 15 to the ECHR, once the latter Protocol enters into force.

 3. Non-anonymous and not already examined applications :

Article 35 § 2 of the ECHR sets out two more procedural criteria for an admissible application by stating that “The Court shall not deal with any application submitted under Article 34 that (a) is anonymous or (b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information”.

Concerning anonymity, in order to avoid anonymous applications, the application form shall be filled in providing the following pieces of information: “the name, date of birth, nationality and address of the applicant and, where the applicant is a legal person, the full name, date of incorporation or registration, the official registration number (if any) and the official address. However, by way of an exception, it is possible for the applicant not to disclose to the public their identity provided that he or she submits a statement justifying their decision. As stated in Rule 47 § 4 of Rules of Court, “The Court may authorise anonymity or grant it of its own motion”.

With regard to the second requirement laid down in Article 35 § 2, an application will be declared inadmissible when its content is substantially the same as a matter which has already been examined by the Strasbourg Court or by another procedure of international investigation or settlement and contains no relevant new information. Thus, on the one hand, the Court may examine whether two applications brought before it have the same factual basis, i.e. they relate essentially to the same persons, the same

12 Ibidem, at 31, § 101.

13 Ibidem, at 32, § 109.

14 Article 4 of Protocol No. 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms, Strasbourg, 24. VI. 2013.

15 Article 8 of Protocol No. 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms, Strasbourg, 24. VI. 2013.

16 Rule 47 § 1 (a) of Rules of Court.

17 Rule 47 § 4 of Rules of Court.

18 European Court of Human Rights, Practical Guide on Admissibility Criteria, Council of Europe/European Court of Human Rights, 2014, at 35, § 132.

facts and the same complaints. For an application dealing with the same facts as a previous one to be admissible, the applicant must advance a new complaint or submit new information which has not been previously considered by the Court. On the other hand, the Court is also competent to assess whether a case before it is substantially the same as a matter that has already been submitted to a parallel international procedure. In so doing, the Court takes into account the parties in the respective proceedings, the relevant legal provisions upon which they relied, the scope of their claims and the types of the redress sought. Then, what is decisive is whether a decision on the merits has already been taken in the parallel proceedings by the time the Strasbourg Court examines the case before it. If this is the case, the application will be declared inadmissible.

 4. Compatibility with the Convention, well-founded applications, respect of the right of application :

Article 35 § 3 (a) of the ECHR reads as follows: “The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application”.

In the first place, applications to the Court must be compatible with the Convention and its Protocols and must fall under the jurisdiction of the Court, which “extends to all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47. The compatibility with the Convention must be assessed from 4 perspectives: ratione personae, ratione loci, ratione temporis, and ratione materiae. Compatibility ratione personaemeans that the alleged violation of the Convention must be attributable to a Contracting State. For an application to be compatible ratione loci,the alleged violation must have occurred within the jurisdiction of the respondent State or in a territory effectively controlled by it. Jurisdiction ratione temporis covers only the period after the ratification of the Convention or the Protocols thereto by the respondent State. Thus, an application to the Court cannot relate to facts occurred prior to the ratification. Lastly, compatibility ratione materiae means that the applicant’s allegations must concern one or more of the rights enshrined in the Convention or in the Protocol thereto. The Court cannot examine complaints concerning violations of any other right.

19 Ibidem, at 35, §§ 135 and 137.

20 Ibidem, at 36, § 137.

21 Ibidem, at 36, § 142.

22 Ibidem, at 36, §§ 140 and 141.

23 Article 32 § 1 of the ECHR.

24 European Court of Human Rights, Practical Guide on Admissibility Criteria, Council of Europe/European Court of Human Rights, 2014, at 41, § 163.

25 Ibidem, at 45, § 185.

26 Ibidem, at 47, §§ 194-195.

27 Ibidem, at 52, § 220.

In the second place, an application will be rejected as inadmissible if it is manifestly ill-founded. Manifestly ill-founded complaints can be divided into four categories:

i) “fourth-instance” complaints (the Strasbourg Court is not a court of appeal or a court which can quash rulings given by national courts or retry cases heard by them, nor can it re-examine cases in the same way as a Supreme Court.

ii) complaints where there has clearly or apparently been no violation.

iii) unsubstantiated complaints (the parties are required to substantiate their factual arguments by providing the Court with the necessary factual evidence and legal arguments explaining why in their view the Convention provision relied on has or has not been breached;

iv) confused complaints or far-fetched complaints (i.e. complaints concerning objectively impossible facts.

In the third place, Article 35 § 3 (a) requires that the applicant does not abuse of the right of individual application. Such situation occurs when an applicant’s conduct is manifestly contrary to the purpose of the right of individual application and impedes the proper functioning of the Court or the proper conduct of the proceedings before it. Concretely, previous cases of abuse of the right of application have dealt, for example, with the following types of situations: false information with a view to misleading the Court; use of offensive language; violation of the obligation to keep friendly-settlement proceedings confidential; application manifestly vexatious or devoid of any real purpose.

 5. Significant Disadvantage :

The applicant must have suffered a significant disadvantage, which might be financial or non-financial. This requirement enables the Court to reject “minor” cases as inadmissible, but with two safeguards: (i) unless respect for human rights requires an examination of the application on the merits, and (ii) provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal. It is noteworthy that Protocol No. 15, which has not entered into force yet, removes the second safeguard stated in Article 35, § 3 (b).

In conclusion, an application to the European Court of Human Rights will be considered admissible if, on the one hand, the applicant falls within one of the categories of petitioners allowed to file an

28 Ibidem, at 83, § 380.

29 Ibidem, at 83, § 381.

30 Ibidem, at 87, § 400.

31 Ibidem, at 88, § 404.

32 Ibidem, at 37, § 148.

33 Ibidem, at 37, § 149.

34 Article 35 § 3 (b) of the ECHR.

35 Europe/European Court of Human Rights, 2014, at 88, § 405.

36 Article 35 § 3 (b) of the ECHR.

application before the Court, and, on the other hand, the above-mentioned admissibility requirements are fulfilled.

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