Valid complaints to the European Court of Human Rights can be made after national courts failed to protect the rights of individuals and organisations set out in the European Convention on Human Rights. In general it may be expected that such complaints are made after thorough consideration and with at least a high probability that the base of the complaint is a violation of human rights.
While there are a number of formal reasons for the court to declare complaints as not fulfilling admissibility criteria, doubts on the high number of complaints which are declared to not fulfill admissibility criteria seem justified. The statistics show that about 95% of applications are declared inadmissible and only for 5% a judgement in the case is made. From my own experience I’m convinced that the court declares complaints inadmissible based on inappropriate handling of the criteria, thus violating the convention and not fulfilling it’s task.
It has to be pointed out that any complaint erroneously declared inadmissible bears a high risk that violation of Human Rights by the member states is tolerated, giving no incentive to improve human rights situation on the national level.
Considering the severe consequences of an erroneous decision stating inadmissibility of a complaint it should be expected that the Court maintains high standards on the quality of such decisions. In no way faulty decisions may be accepted as means of the Court to deal with high case counts. The intention of this site is to help the Court maintain appropriate quality standards by publishing decisions declaring inadmissibility based on questionable inadmissibility decisions made by single judges. If you know of such decisions, please contact me.
In my case the decision declaring my application inadmissible did not point out formal mistakes in the application, but states “do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto“. Such statement needs to be checked against the admissibility criteria in the Convention.
“Article 35 – Admissibility criteria” lists the conditions, under which a complaint has to be considered inadmissible and rejected. As all the other admissibility conditions in this case have been fulfilled and no violation according to pp. 1, 2, 3b have been stated in the decision, the conclusion is that the decision was based on p. 3a of the article:
“The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
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;“
As also no incompatibility with the provisions of the convention or abuse of the right of individual application has been stated, what is left is “manifestly ill-founded” and this term has to be further analysed. It has to be pointed out that the term is not satisfied by a simple characteristic “ill-founded” as this might be the result of a sincere analysis of the case, but it has to be manifestly ill-founded, which is a much tighter restriction.
The “Practical Guide on Admissibility Criteria” in part “III. Inadmissibility based on the merits” states that manifestly should not be read in the tight sense, but “the expression is to be construed more broadly, in terms of the final outcome” and “will be considered manifestly ill-founded if a preliminary examination of its substance does not disclose any appearance of a violation of the rights guaranteed in the Convention“. While that interpretation is highly questionable in itself and inviting to lead to arbitrariness in refusal of applications, a decision on inadmissibility based on such broad sense is outside the competence of a single judge. This follows clearly from article 27 of the Convention:
“Article 27 – Competence of single judges
1 A single judge may declare inadmissible or strike out of the Court’s list of cases an application submitted under Article 34, where such a decision can be taken without further examination.“
According to that article the competence of a single judge to declare an application inadmissible in the broad sense of “manifestly ill-founded” (as claimed in the above mentioned guide on admissibility criteria) after preliminary examination of its substance is clearly excluded by the fact that such competence of the single judge is limited to decisions which can be taken without further examination (this regulation does not distinguish between preliminary and non-preliminary examinations).
That regulation in the Convention is wise, as such decision made by a single judge is final, whereas an erroneous decision is depriving the applicant of protection of his human rights by the court. Quite obviously such harsh consequences require an interpretation of “manifestly ill-founded” in a rather tight sense. Even if the guide on admissibility criteria relates to settled cases and abundant case-law, that does not give the justification to put protection of human rights at risk in direct violation of a rather clear competence assignment in the Convention.
Details of the application, the decision on inadmissibility of which made me create this site, are outlined on the following page, so on this page only a short overview of the application will be given.
The complaint sent to the court includes claims outlining the violation of the right to a fair trial in article 6 of the Convention, including the fact, that major arguments from our side in the national courts have not been considered in the reasoning of the decision (page 5), essential proofs have not been taken into account (page 5) and an application to collect proofs by the court has been rejected (page 6) against the law. Furthermore the complaint includes hints to likely influence of corruption onto the rulings of the national courts, like the fact that the court bases it’s judgement on assumptions which have not even been claimed by the other party, as the other party did neither take place in the hearing nor provide any (regular) statement of it’s position to the court.
Furthermore the complaint includes reference to the guarantee to property (Protocol 1) and outlines that the property rights to the payment according to the contract has been lost as result of the lack of a fair trial and such the state has failed to fulfill the guarantees of property.
In that situation “manifestly ill-founded” as condition for declaration of a complaint inadmissible can not be considered valid. The obligation of the court to give reasons for the decision may not be fulfilled by “reasons”, which obviously are not in line with the facts of the case.
The reputation of the court is of high importance. That includes that standards for a fair trial, which the Court applies to trials on the national level, should also be observed in it’s own decisions. Whether, given the fact that the application includes three pages of explanations for the national trial not being fair, the following statement (which is a general phrase and does not provide any relation to the facts of the case and the details mentioned in the application)
is sufficient to fullfill article 45 of the Convention:
“Article 45 – Reasons for judgments and decisions
1 Reasons shall be given for judgments as well as for decisions declaring applications admissible or inadmissible.“
seems highly questionable.
What is interesting in that relation that, while the rules of court (§52A) foresee that if a single judge does not declare an application inadmissible, the judge shall forward the application to a Committee or to a chamber, the simplified case-processing flow chart by judicial formation as published by the court does not foresee such path – which obviously indicates that simply by assigning an application to a single judge typically a predecision for the application to be declared inadmissible is made – the equivalent of a freudian slip?
Rule 52A – Procedure before a single judge
1. In accordance with Article 27 of the Convention, a single judge may declare inadmissible or strike out of the Court’s list of cases an application submitted under Article 34, where such a decision can be taken without further examination. The decision shall be final. It shall contain a summary reasoning. It shall be communicated to the applicant.
2. If the single judge does not take a decision of the kind provided for in the first paragraph of the present Rule, that judge shall forward the application to a Committee or to a Chamber for further examination.
In conclusion the facts outlined give indication that decisions on inadmissibility by the court are – at least partially – made in violation of the Convention, competence limits are exceeded, eventually such decisions are made more with reduction of workload for the court than protection of human rights in mind. That way the court seems to partially fail to fulfill it’s tasks and obligations.
As the protection of human rights is a very important issue and violation of human rights as result of organisational deficiensies is not to be considered acceptable, improvement of the quality of the work of the court seems to be required. Not to be forgotten in that relation is the effect the court has on the behaviour of the member states regarding protection of human rights.