How significant is the ‘significant disadvantage’ of the new admissibility criterion (Part I)?

In its decisions in the cases of Holub v. the Czech Republic and Bratři Zátkové, a.s. v. the Czech Republic the Court has unanimously declared the applications inadmissible. The Court used the new admissibility criterion to determine that.

The new criterion was introduced by Protocol No. 14, which entered into force on 1 June 2010. It is incorporated in Article 35 paragraph 3 (b) of the Convention:

“The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

The introduction of this new criterion was considered necessary in view of the Court’s constantly increasing workload, and is intended to enable it to focus on cases that justify an examination on the merits.

Previously the cases where the new criterion was used concerned petty money issues (see previous post here). This time the cases did not concern petty money issues, and thus has widened the applicability of the criterion. These cases concerned the dismissal of constitutional appeals lodged by the applicants (complaining of violations of the principle of a fair hearing). In those appeals, they complained that they had not been informed of the observations submitted to the Constitutional Court by the lower courts and by the Supreme Court.

In applying the new criterion, the Court examined in turn the three aspects of this new criterion: 1. Did the applicants suffer a significant disadvantage?

2. Did respect for human rights require an examination of the applications on the merits?

3. Were the applications duly considered by a domestic tribunal?

As the three conditions for the new inadmissibility criterion were present in the applications in question, the Court concluded that they were inadmissible.

This examination is time and energy consuming as elaborate examinations are done to answer these questions. So the question arises: what are the benefits of this new criterion? How can it help to deal with the workload of the Court? I thought that Three-judges committees or Single-judge formations could decide on these cases, so it would take less effort for the Court. But that is not the case at the moment. Article 20 of Protocol 14 states: “In the two years following the entry into force of this Protocol, the new admissibility criterion may only be applied by Chambers and the Grand Chamber of the Court.” In these two years the Chambers and the Grand Chamber are supposed to interpret the new criterion to produce clear rules for its application. This leads to another problem – there have been very few cases where the Chambers have used the new criterion. In 11 months since the entering into force of Protocol 14, I have spotted some 4 cases…

As one can see form the Declaration adopted in the Izmir conference last week, the States are aware of the problems I have just pointed out; they state: “.. that the new admissibility criterion adopted in Protocol No. 14, which has not yet had the effect intended, is about to be shaped by the upcoming case law and remains to be evaluated with a view to its improvement, and invites the Committee of Ministers to initiate work to reflect on possible ways of rendering the admissibility criteria more effective and on whether it would be advisable to introduce new criteria, with a view to furthering the effectiveness of the Convention mechanism”.[1]

Let’s see what the upcoming case law is like in the next 13 months. The criterion, as it is interpreted now, is obviously applicable to very few cases; and is not helping to deal with the caseload, which is its aim.

In Part II of this post I will advocate for a stronger approach towards the interpretation and use of the new criterion.