Crossing the red line: application of the ‘significant disadvantage’ criterion in an Article 5§3 case

Recently, Judges De Gaetano and Ziemele did not hide their bewilderment with the Latvian government’s argument in favor of the application of the ‘significant disadvantage’ admissibility criterion in the case of Bannikov v. Latvia.
The case concerned a pre-trial detention that had lasted 1 year 11 months and 18 days. The Latvian government relied, inter alia, on Article 35 § 3 (b) of the Convention, which provides:
“3. 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.” This was the first time the Court had to decide on the applicability of the criterion in an Article 5§3 case (the right to be brought promptly before a judge and to be entitled to a trial within a reasonable time). The Court responded that in circumstances like the ones in the present case the de minimis criterion ‘could hardly be applied’. In his concurring opinion judge De Gaetano (joined by judge Ziemele) used a stronger language when referring to the matter; he wrote:

“How the respondent Government could, with a straight face, submit that the applicant was to be considered as having suffered no “significant disadvantage” according to Article 35 § 3 (b) is beyond my powers of comprehension…In Ostendorf v. Germany …where a person was detained for four hours – it never crossed anyone’s mind even to suggest that this was a de minimis case …. But then perhaps the Court’s imagination in that case, like my imagination, is not fertile enough!”

Over the past three years (since the entering into force of Protocol 14, which introduced the criterion) there has been one other Article 5 case where the Government argued for the application of the de minimis criterion – Van Velden v. the Netherlands, a case concerning deduction of pre-trial detention from the prison sentence. The claim was examined under Article 5 § 4 and the Court was of a view that the de minimis criterion could not be applied.

Another statement made by the Court in Bannikov concerns one of the safeguard clauses for the application of the de minimis criterion – the case has to be duly considered by a domestic court. If this safeguard is not fulfilled, the Court has to reject the application of the criterion. In this regard, the Court reasoned in Bannikov: “… in the circumstances where the very essence of the applicant’s complaint relates to the proper examination by the domestic courts of relevant and sufficient reasons for his continued deprivation of liberty and in view of the fact that the Court has found serious shortcomings in such examination at the material time in Latvia …, the Court cannot consider whether the case has been “duly considered” by domestic courts without examining the merits of the case.” It concluded that the present application could not be dismissed under Article 35 § 3 (b).

Changes have been envisaged with regards to the above-mentioned safeguard clause. Protocol 15 has been opened for signatures on 24 June of this year, and article 5 concerns the ‘significant disadvantage’ criterion:

“In Article 35, paragraph 3, sub-paragraph b of the Convention, the words “and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal” shall be deleted.”

The Explanatory report states that this amendment is intended to give greater effect to the maxim de minimis non curat praetor.

On the one hand, the deletion will facilitate easier application of the criterion and dismissal of trivial cases. One can see that in the admissibility decisions where the criterion has been used the reasoning is usually longer and more elaborate than in some judgments.
On the other hand, the clause was initially seen as important; the purpose of that rule being to ensure that every case receives a judicial examination.
Has the safeguard clause been “the red light” for dismissal of applications through the de minimis criterion in many cases? So far I have spotted four cases: Dudek v. Germany (no. 12977/09), Finger v. Bulgaria (no. 37346/05), Flisar v. Slovenia (no. 3127/09) and Fomin v. Moldova (no. 36755/06). With the exception of these four cases, the safeguard clause has not been a major obstacle in the application of the de minimis criterion (it has been invoked in over 40 cases so far).

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