Tuesday, 29 June 2010

First Decision on Lack of a Significant Disadvantage

On the very day of the entry into force of Protocol 14, 1 June 2010, the Court immediately seized the opportunity to start using a new key admissibility criterion introduced by that Protocol, as a press release of the Court highlights this week. In the case of Adrian Mihai Ionescu v. Romania, the Court used the criterion that the applicant had not suffered a "significant disadvantage". The applicant's claim concerned a claim of 90 euros against a bus company with which he had travelled between Bucharest and Madrid, for not providing the promised services. In national court proceedings, his case was assessed his case and his complaints were rejected. The national Court did not rule on his request that the defendant company produce certain items of evidence. Higher courts dismissed his appeals.

The Court used the case to flesh out the three main elemenets of the admissibility criterion found in Article 35, parageraph 3: the Court can declare applications inadmissible if 1) "the applicant has not suffered a significant disadvantage", (2) unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits" and (3) "provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal."

As to the first and most crucial element the Court considered both the amount of the alleged loss itself (90 euros) and its relation to the applicants own (financial) circumstances. Neither of these indicated that the applicant was at a significant disadvantage. Thus the test under this first aspect is a double one: first a relatively external assessment of extent of the disadvantage in itself (which in case of financial loss is admittedly more easy to qualify) and second the relation of that loss to the particular situation of the allged victim. For a very poor person, a loss of 90 euros might of course be significant.

Secondly, the Court looked at whether the two "exceptions to the exception" led to a different conclusion. As to the respect for human rights, the Court concluded that the relevant legal provisions in Romania had been repealed and the case was in that sense of historical interest only. As to the question of whether the case had been duly considered by a domestic court, the Court answered this positively. Thus, it rejected the complaint.

In making its arguments under the three tests, the Court not only used the explanatory report to Protocol 14, but also its own earlier case law. In the case of the 'significant disadvantage' this noticeably included a range of dissenting opinions in earlier cases!

It may be noted that the Court assessed the case in detail and declared part of the complaint ill-founded - the admissibility of evidence issue was declared manifestly ill-founded, whereas the complaint about the proceedings in the higher courts were deemed not to be manifestly ill-founded or an abuse of the right to petition, but rather inadmissible under the new admissibility criterion. This seems to send out the signal that the Court will not too easily apply this criterion to do away with an entire application, but will use it with a caution that respects the various aspects of a complaint. This may assuage the concerns and fears of many, but on the other hand may diminish the efficiency gains of the new criterion. Let's hope the press department of the Court will keep highlighting new developments in these normally difficult to trace non-admissibility decisions.

The case itself is available only in French thus far, but a press release in English can be found here. For a short fact sheet on the reforms of Protocol 14, click here.


Jiří Kmec said...

"As to the question of whether the case had been duly considered by a domestic court, the Court answered this positively."

I wonder what is meant by "case" (affaire) in the sense of Art. 35-3-b of the Convention? According to this decision of the Court, it should be the case (civil action or criminal charge) put by (or against) the applicant before the national courts. But shouldn't we interpret the "case" rather as the complaint (grief) brought before the Court? And, accordingly, to use the new admissibility criterion only if this complaint has been duly considered by a domestic court?

The explanatory report says: "It will never be possible for the Court to reject an application on account of its trivial nature if the case has not been duly considered by a domestic tribunal. This clause, which reflects the principle of subsidiarity, ensures that, for the purposes of the application of the new admissibility criterion, every case will receive a judicial examination whether at the national level or at the European level." (point 82).

But if this really had to reflect the principle of subsidiarity, then it should have been rather the complaint in question (concerning several fair trial issues in respect of the proceedings before the High Court of Cassation and Justice) that had had to be considered by a domestic court, because the Court is not a court of fourth instance, it certainly could not deal directly with the applicant’s case (= civil action), his/her case - if understood in this sense – could not “receive a judicial examination ... at the European level.”

Jiri Kmec
Ministry of Justice of the Czech Republic

Václav Žalud said...

To Jiří Kmec:

I agree with your objections. Conceptually speaking, the explanatory report is incorrect, because, as you correctly object, the "case" before the ECtHR is always different than that before domestic courts. Therefore the statement that "every case will receive a judicial examination whether at the national level or at the European level" is at least inaccurate.

I also think that the new admissibility criterion should rather aim at ensuring that an applicant will have the opportunity to raise his or her objections against human rights' violations before domestic courts. In other words, that domestic courts will duly consider alleged violations of human rights. This would perfectly comply with the idea that the ECtHR is not the court of third, fourth, etc. instance, but specific court dealing with violations of the Convention. Furthemore, it would also be reasonable in the sense that you usually have to exhaust domestic remedies in order access the ECtHR.

The problem in this case is, in my opinion, that it was about the alleged violation of Article 6 of the Convention (also) by civil court of last instance. This makes the case relatively specific in this sense. How could the applicant object against his/her human rights' violations if his/her appeal to the High Court (of Romania) was declared null and void? I think that he/she could not. This would mean that the ECtHR could not apply the new criterion in these cases, because raising objections against human rights' violations would always be impossible in them (i.e., the "case" would never be duly considered by domestic court). The applicability of Article 35 (3) (b) would, in my opinion, therefore be reduced.

I believe that Article 35 (3) (b) of the Convention seems rather to guarantee that if there was no "access to domestic court", the new admissibility criterion cannot be applied. In other words, raising objections against human rights' violations before domestic courts is not relevant for the application of the criterion.

But your comment was brilliant!

Jiří Kmec said...

"This would mean that the ECtHR could not apply the new criterion in these cases, because raising objections against human rights' violations would always be impossible in them (i.e., the "case" would never be duly considered by domestic court). The applicability of Article 35 (3) (b) would, in my opinion, therefore be reduced."

Your objection is certainly legitimate, but the inapplicability of Art. 35-3-b is not the only solution of the problem. In these situations - where the complaint raised before the Court targets an alleged lack of a fair trial in the proceedings before the domestic court of last instance - I can also imagine the "inapplicability" of the restrictive condition in question. I think that this interpretation could be justified: the Court could say that otherwise states would be “forced” to create domestic remedies ad infinitum.

Václav Žalud said...

I agree that both interpretations are probably legitimate. Personally, I rather agree with your "restrictive" approach (maybe on different grounds than you). But I think that the ECtHR will interpret it differently anyway (as its decision indicates).

As regards the creation of domestic remedies ad infinitum. If I understand you correctly, you argue that States could defend themselves by saying that otherwise they would have to create domestic remedies against decisions of courts of last instance. If this is what you argue, I would just add that in the context of European law, Member States were also supposed to "create" competent authorities to deal with violations of European law by courts of last instance. This has been very controversial conclusion pronounced by the ECJ in Köbler v Republic of Austria (C-224/01). I doubt that the Czech republic has "created" one (since we both speak Czech, you can see my article on this issue on http://vialegis.blogspot.com/2010/02/je-cesky-pravni-rad-pripraven-na.html).

In the Czech Republic, we further have the Constitutional Court. If I am not mistaken, I believe that it could deal with human rights' shortcomings such as those in this case.

Anonymous said...

I have been trying to fight my own case regarding discrimination,including threats to my life, social housing problems where I am a victim of false allegations of rape and my social housing landlords and Police are not helping me move.I was discriminated by my local college because I intended to study Law; and other matters brought to the ECHR attention.I made my first application to the ECHR in 2003, then again in 2007 and in 2009 without any legal ;or parliamentary help. I have cited two excellent Tables of cases that are similar to my particular case and it seems that the U.K. and the ECHR have corrupted my case. Application numbers 14187/07 & 17518/09 TOVEY.V.THE UNITED KINGDOM. The UK does not uphold the HRA 1998. It appears as a single male in the UK I have no rights. I have sent legal documents, sent faxes and even rang up the ECHR only to be told my case is 'apparently pending'or 'It is being translated' I have requested numerous times for my case to be heard and confirmation of documents sent.I live on less than FIVE POUNDS, Thirty Six Pence per week UK Sterling and no one in position of powers would help me. I have contacted many Civil Liberties lawyers, Liberty, The Aire Centre in London and none of them care to help me too. The ECHR are aware of my prroblem trying to seek legal ;or parliamentary help including Her Majesty The Queen and this should clearly show to the ECHR just how corrupt the UK Government and it's authorities are in helping one of their own people. I have endured too many 'disadvantages' in this particular case including mail being deliberately damaged ;or not sent even thgouh sent via AIRSURE and SIGNED FOR INTERNATIONAL POST and constantly ringing up the ECHR and not being allowed to speak to anyone other than the switchboard staff who appear to block my calls and possibly mail sent to the ECHR too. I have sent duplicate letters to the President and Vice Presidents of the ECHR and it appears that my case has been internally corrupted by the ECHR to avoid helping an innocent man wrongfully accused of rape.It appears that the Human Rights Act only exists for either lying women or extreme murderers, terrorists such as R.v. McGee (1984) or R.v.Hindley
(1969) these two convict was allowed to study in prison and obtained their Degrees at TAXPAYERS EXPENSE. I was deliberately discriminated because I told the TRUTH as to why I intended to study Law.