April 09, 2024
Eva Brems
‘The European Court as the main violator of human rights’, it said on a PowerPoint slide in my ECHR class this semester. This was a presentation by a guest speaker: an attorney with a lot of experience with ECtHR procedures. I had simply invited him to talk about this experience, but he had a message to convey that would trouble my idealistic students. With multiple illustrations from his practice, he showed that the Court, in its own procedures, does not respect the fair trial requirements it imposes on domestic courts. This is not only about the reasonable term requirement. Another key issue is the requirement to motivate a judgment. A very large part of the ECtHR’s rulings are decisions of inadmissibility. In 2023, the Court found 25,557 applications inadmissible, representing 67% of the 38,260 applications disposed of judicially in that year. Most of these dismissals are issued by a single judge. These decisions, which are not included in HUDOC, consist of a standard formulation of 4 sentences. The applicant is informed that a single judge has found their application to be inadmissible and is informed of the ground for inadmissibility under article 35 §3 (a). Nothing more. This leaves applicants and their attorneys guessing at the underlying reasoning. ‘How do I learn from this, as an attorney?’, my guest speaker expressed his frustration, ‘and how do I explain this to my client? How can my client come to terms with the fact that their experience of injustice was not recognized as such by the European Court of Human Rights (the Court) if we have no idea why?’
As scholars and teachers of the ECHR, we can ask ourselves the same question: can we really understand and explain the way the Court interprets its Convention if we don’t know what happens in the large majority of its rulings?
And there is a more fundamental and harrowing question underneath this, a question that concerns all ECHR rights holders: how can we trust that the Court’s rulings are just and fair if the majority of them lack motivation?
Over the years, occasionally a single-judge decision is brought to my attention, that I can only qualify as ‘bewildering’. I have no way of knowing if these are rare exceptions, or instead manifestations of a massive problem of substantive fairness in addition to the procedural fairness problem arising from the absence of motivation.
In today’s post, I would like to share the case of Pia Deleuran.
Ms. Deleuran is an attorney in Denmark, and was described to me as ‘an advocate for women’s rights, who often finds herself at odds with male colleagues and with an organization of fathers who claim more custody rights over their children’. She applied to the Court after losing a court case in Denmark about her right to reputation. She had sued a journalist and a director of TV2, after a TV2 news item reported allegations against her and included an interview with her. The item was about accusations by an association of fathers that certain attorneys acted controversially, for instance by inviting/inciting their clients to make false statements in cases about child custody and parental rights. The association had a list of attorneys they accused of such practices, on which Pia Deleuran’s name figured.
The Court of Appeal dismissed her claim (judgment of 16 November 2020), arguing that she had been able to defend herself in the interview and that it was clear from the news item that the accusation emanated from the association of fathers.
She applied to the European Court of Human Rights, alleging a violation of Article 8 ECHR. As an annex to her application form, she attached a legal opinion by an emeritus professor specialized in media law and related ECtHR case law. This is an expert, who is still very active as an internationally recognized author and as an expert in the Council of Europe context. The legal opinion argues in twelve pages that the domestic judgment fails to guarantee the applicant’s right to privacy and reputation in accordance with Article 8 ECHR. It includes numerous references to the ECtHR case law and claims in particular that the domestic court has not done any balancing of the Article 8 and Article 10 rights involved. The opinion refers to the six criteria set out in the Grand Chamber judgments of 7 February 2012 in the cases Axel Springer v Germany (no.1) (from the perspective of Article 10) and Von Hannover v Germany (no. 2) (from the perspective of Article 8), and argues that the domestic court should have conducted a balancing exercise using these criteria, and moreover, that a correct application of these criteria would have had to lead to a finding in favour of Pia Deleuran. Without even considering the second point (which requires going into the case details), I do not doubt that I would have given the same advice on the first point. The defamation case law of the ECtHR has embraced a type of procedural review as its standard approach, ruling that failure of the domestic bodies to conduct a proper proportionality assessment along the criteria set out in the case law, leads to the finding of a violation. The legal opinion submitted by Pia Deleuran refers amongst others to Parfentyev v Russia, Lewit v Austria and Sağdiç v Turkey as examples of this approach.
While Pia Deleuran, thus, had good reasons to expect to win her case in Strasbourg, a single judge decided that her application was inadmissible.
The decision reads as follows (the highlighting of the second sentence is mine):
The European Court of Human Rights, sitting on 13 January 2022 in a single-judge formation pursuant to Articles 24 § 2 and 27 of the Convention, has examined the application as submitted.
The application refers to Article 10 §1 of the Convention.
The Court finds in the light of all the material in its possession that the matters complained of do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto. Accordingly, these complaints are manifestly ill-founded within the meaning of Article 35 §3 (a).
The Court declares the application inadmissible.
To be clear, the application claimed a violation of Article 8 ECHR, and not of Article 10 ECHR, which in this case can be seen as a competing right.
One can only imagine the consternation when Pia Deleuran and her attorney, carefully reading this decision for any trace of an explanation for the dismissal of their complaint, find that the Court mis-labelled their application as being about Article 10 instead of Article 8.
They reacted by sending a letter to the (then) President and Vice-Presidents of the Court, as well as the relevant section president and the Judge who made the decision. They never received any reply to that letter.
We do not know what happened behind the scenes: maybe the person who drafted this opinion understood that the case was about Article 8, and mentioned Article 10 by mistake. Or maybe the person who drafted the opinion read the case superficially and made a wrong legal assessment. While the second mistake is much more serious than the first, it is manifest that a mistake was made in this case, likely by a lawyer in the registry, and that this mistake was not noted by the Judge who pronounced on the case.
The fact that an applicant is given reason to believe that the legal analysis of their case by the Court was sloppy and wrong, is problematic in itself. If what happened here, is more than a human error at the moment of writing a number – that is to say if the decision was actually based on sloppy and wrong legal analysis, this is a manifestation of a serious problem in the functioning of the Court, which risks undermining its credibility.
The failure to respond to the applicant’s letter, adds insult to injury. A mistake was made, and procedural fairness requires this to be acknowledged and rectified.
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5 Comments
Auch ich habe das erfahren in Sachen Beschwerde Nr. 28908/18: Als Antragsteller bin ich darüber informiert worden, dass ein Einzelrichter – Tim Eicke – meinen Antrag/meine Beschwerde als unzulässig befunden hat, weil die Kriterien nach Artikel 34 + 35 nicht erfüllt sind.
Thema der Beschwerde war “EU-mitgliedstaatlicher Rentenanspruch” gemäß EU-Verordnung 883/2004. Kurioserweise enthält sie eine Textpassage in Art. 53 (3) b), welche den Personenkreis mit Zeiten der Ausübung der Arbeitnehmer-Freizügigkeit benachteiligt, sprich “diskriminiert”. Grund dessen ist, dass die VO-Bestimmung den Grundsatz “Anwendung nationales Recht” in jedem Mitgliedstaat, “Gleichbehandlung-/stellung” mit nationalen Anspruchsberechtigten ohne EU-VO-Bezug zu Nichte macht mit als Folge die impliziete Diskriminierung der Wanderarbeitnehmer. Dies entgegen Art. 18 AEUV sowie Art. 45 AEUV und diesbezüglich ergangener EUGH-Entscheidungen. In letzteren fehlen m.E. Ausführungen zu Sinn und Zweck der “autonomen” und “theoretischen” Rente und Hinweisen für die Praxis, dass vorgenannte Kriterien in allen Berechnungsabschnitten strikt getrennt voneinander zu handhaben sind. Anders kommt es – bedingt und abhängig vom pro-rata-Satz – zu Verwerfungen/unverhältnismässiger Kumulierungskürzung. In meinem Fall entzieht sich ein Mitgliedstaat seiner Rentenverpflichtung: Beweis dafür ist, dass die Kumulierungskürzung der theoretischen Rente den Betrag der autonomen Rente vor Kumulierungskürzung um Euro 584,79 übersteigt, indirekt sogar vom Rentenanspruch profitiert, der im anderen betroffenen Mitgliedstaat mit eigenem souveränen Rentenrechtssystem durch Beiträge erwachsen ist.
Problematik, die nicht erkannt und deshalb nicht behoben wird.
Was the single judge named? and did he or she sign the ‘non-decision’?
Please also see this study for further enlightenment -https://www.europedeslibertes.eu/article/one-year-of-french-single-judge-decisions-before-the-european-court-of-human-rights/
Many thanks for this,
I take it Ms Deleuran requested the reopening of the proceedings on grounds of a manifest error and yet she received no answer? In one for all intents and purposes similar case, I received a pretty passive-aggressive reply by the Court to the effect that there was no right to appeal an inadmissibility decision ( of course it was not an appeal in disguise – the request merely pointed out a pretty obvious mistake by the Court which effectively modified the applicant’s complaints and referred to some pretty arcane Commission caselaw on reopening proceedings).
That aside, even if Ms Deleuran by mistake considered that this was an Article 10 case, could the ECtHR reject it on grounds of invoking the wrong Convention article, what with it being the master of characterisation to be given in law to the facts of the case and whatnot?
Professor Brems raises an issue of great concern to practitioners which it is welcome to see aired in academic circles. I make no comment on the individual case referred to, but two points should be made. First, the Court is overburdened and under resourced. Amongst several other serious structural problems, the worst of which is the delay in the examination of meritorious but non-urgent (Category IV) cases which wait years to be communicated to Governments, let alone decided, the Court receives high numbers of objectively meritless applications. Applying a policy which is itself open to question, for years the Court has striven to dispose of these cases rapidly, within months, through a single judge inadmissibility decision. Initially these decisions included no motivation; they now include the very abbreviated reasoning described above. Whether the resource allocation is correct to deal with meritless cases quickly to keep the number of pending cases under control, hard choices are inevitable for a Court which produces about 1100 judgments a year concerning 3000 applications, but has a docket of tens of thousands of pending cases.
Secondly, there is a little known and less publicised route to seek the reopening of manifestly wrong decisions declaring an application inadmissible. The route is mapped by Ölmez and Ölmez v Turkey No 39464/98 (decision of 5 July 2005) and Noé, Vajnai and Bakó v Hungary No 24515/09 (decision of 13 March 2012): where a manifestly wrong decision has been made and is challenged as such, the Court has a process and the power to reopen an inadmissibility decision and re-examine the case.
The key to the operation of the Court’s current case processing is the initial assessment of each application made by the Filtering Section of the Registry when the case is first lodged. Wish them luck, or more concretely, more resources
The Court finds an excuse for the lack of reasons in its jurisprudence under Article 6 of the Convention and in the big number of manifestly inadmissible applications it has to deal with. The right to a reasoned decision stems from Article 6 of the Convention. Under it, everyone is entitled a fair and public hearing in the determination of his/her civil rights and obligations or any criminal charge against him/her. When you look and the Court’s case law, it would appear that a decision on inadmissibility by a single judge is neither a determination of a civil right or obligation, nor a criminal charge. This is why these rulings lack motivation. I find this a poor justification however. A human rights court should not apply its standards under Article 6, which are restrictive, to its decisions on admissibility of applications, which require a more careful consideration, as in the present case.
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