July 08, 2025
By Lize Glas
Some seventy percent of the cases pending before the Committee of Ministers (CM) are repetitive. These cases are caused by the same structural problem as other cases already pending execution. The number of applications assigned to a judicial formation of the Court tells a similar story: about eighty percent are repetitive or can be resolved based on well-established case law. These figures show that the states often fail to take general measures to ensure that similar violations do not occur in the future.
In this contribution, I propose that the Court can do more to place the guarantee of non-repetition at the heart of its case-law, including by focusing on the context of a violation. I focus on individual applications; I do not address inter-state cases or P16 advisory opinions. Understanding the context (i.e. practice, policy or legislation) in which an individual violation occurred is key to understanding what measures need to be taken to guarantee non-repetition. Implementing such measures is a legal obligation under Article 46(1). Equally important, fulfilling this obligation would prevent human rights violations. The principle of subsidiarity also ‘requires States Parties to take all measures necessary to redress, and preferably to prevent, violations’, as Judge Pinto de Albuquerque explained. Finally, better compliance with this guarantee would also reduce the considerable workload of the Court and the CM.
This blog follows the stages through which an applications passes: admissibility, merits and execution. For each stage, I discuss the Court’s current practice, my proposal for improvement and its feasibility, as well as previous practice on which my proposal builds. Aware of the controversies surrounding some of my proposals, my main objective is not to propose detailed or even feasible changes in the short term, but to stimulate debate and draw attention to the guarantee of non-repetition.
Article 34 provides that only the victim of a violation can file an application. Consequently, actiones populares, i.e. applications by persons other than the victim, are in principle inadmissible. This rule limits the Court’s ability to examine the context in which an ECHR violation occurred, since an actio popularis necessarily requires the Court to examine the context or conduct in abstracto review at the merits stage, given the lack of facts relating to an individual applicant. In addition, this rule has led the Court to prefer in concreto review over abstractreview as is explained in more detail in section 3, i.e. to focus on the facts of the individual violation rather than on the overall picture.
In light of the above, the Court could consider being more lenient in allowing actiones populares by associations in general or in certain thematic areas (e.g. environmental pollution as proposed by judge Krenc or discrimination). In addition to their focus on the broader picture, such applications are advantageous because they are effective, due to the ‘concentration of human and logistical resources and the pooling of costs’. In addition, associations are ‘ideal [channels] for bringing a large number of claims by victims’ who are affected by the same problem in large numbers, as judge Krenc also noted. Actiones populares can also be effective for the Convention system if combined with a higher threshold for the admissibility of individual applications or a (temporary) ban on similar individual applications.
I understand that this proposal is controversial. To illustrate, the Court has only been willing to accept actiones populares in climate cases and has refused to do so in environmental cases, as is explained below. From a practical perspective, the proposal risks increasing the Court’s caseload in the short term (and also in the long term if the states do not take the obligation to execute the Court’s judgments seriously) when leaving individual access untouched. In addition, when (temporarily) banning comparable individual applications, the ‘costs’ (in terms of just satisfaction) of ECHR proceedings for a state decrease, removing a possible incentive to address the structural problem. However, as Fikfak has explained, the Court’s current approach to damages does not appear to have any deterrent effect. From a more principled point of view, this proposal is controversial, especially if it is combined with reduced access to the Court for individual applicants. Moreover, the text of Article 34 is an obstacle, though not an insurmountable one, since textual interpretation is not the Court’s main method of interpretation and the existing exceptions to the victim requirement that the ECtHR has created show that there is some room for manoeuvre. As Judge Serghides explained, ‘the term “victim” in Article 34 […] should be interpreted and applied autonomously, broadly and in an evolutive manner according to the principle of effectiveness’. I will now outline two such exceptions.
An exception is made for potential victims in the form of members ‘of a class of people who risk being directly affected by’ a provision of national law and who can ‘produce reasonable and convincing evidence of the likelihood that a violation affecting them personally would occur’ (paras 46, 48). A class of people can, for example, be all women of child-bearing age or all French lawyers. It is also possible to complain about ‘the mere existence’ of certain secret surveillance measures (para 153), without having to prove ‘the existence of any risk’ that these measures would be applied (para 171). In Cannavacciuolo and Others v. Italy, the Court ruled that anyone who had lived ‘over a considerable period of time, in municipalities identified by the State authorities as being affected by the pollution phenomenon at issue’ was a victim. It was not necessary to prove a ‘link between the exposure to an identifiable type of pollution or even harmful substance and the onset of a specific life-threatening illness or death as a result of it’ under Article 2 (para 390). Consequently, the ‘actual imminence of death for each individual may thus have been rather remote’. As these examples show, and even though they are not actiones populares, Article 34 was not an obstacle to admissibility even if the group of (potential) victims was large and the likelihood that the structural problem would affect them low.
Second, in KlimaSeniorinnen, the Court turned the victim requirement on its head by formulating sui generis admissibility requirements for individual applicants and associations in climate cases. The threshold for individuals is high: they must be ‘personally and directly affected by the impugned failures’ to combat climate change (para 465). Associations must meet three requirements, not including that ‘those on whose behalf the case has been brought would themselves have met the victim-status requirements for individuals in the climate-change context’ (para 502). Since associations need neither to be victims nor represent victims, they can bring actiones populares in climate cases (cf para 484), also taking into account that their statutes must show that they pursue the purpose of (in short) ‘collective action for the protection of [human] rights against the threats arising from climate change’ (para 502).
My proposal included the idea of setting a higher threshold for the admissibility of individual applications. As was just explained, this is what the Court did in KlimaSeniorinnen. Additionally, my proposal included the idea of (temporarily) banning similar individual applications. This idea is also not without precedent either, as it is an optional feature of the pilot-judgment procedure under Rule 61(6) of the Rules of Court (see also here). The Court has also adopted a Practice Direction on the processing of applications in the event of a mass influx, stating that the Court may provisionally suspend the registration of some or all applications in the event of such an influx, ‘pending a decision by a judicial formation in one or more leading cases on how the relevant applications are to be processed’. Furthermore, when an inter-state case is pending, the Court generally does not decide individual applications ‘raising the same issues or deriving from the same underlying circumstances’ until the judgment in the inter-state case has resolved ‘overarching issues’.
Although actio popularis and review in abstracto are often mentioned together, including by the Court, I distinguish between the two concepts. The question of actio popularis is a question of admissibility and, more specifically, of the person of the applicant: is being a victim an admissibility requirement? If so, actiones populares cannot be brought. The question of in abstracto relates to the scope of the examination of an admissible complaint at the merits stage: is the focus only on the facts of the individual case or is it (also) broader? While an actio popularis inevitably leads to a review in abstracto (does a practice/policy/law violate a right?), since there is no individual victim complaining about concrete facts, individual complaints may lead to a review in concreto (does the way in which a practice/policy/law has been applied to the individual violate a right?), but may also lead to a review in abstracto.
The Court’s starting point is a review in concreto rather than more general review. Consequently, the Court may find a violation, without paying any attention to the structural nature of the problem that caused the violation, and thus without shedding light on what needs to be addressed in order to ensure non-repetition.
The Court might consider engaging in an abstract review whenever the alleged violation is not an ‘accident’ but is caused by a structural problem, be it practice, policy or legislation. By identifying the cause of a violation, it is clear, at the execution stage that the state must take general measures to ensure non-repetition. I suggest that the Court should carry out this abstract review before examining individual facts, and that the in abstracto findings alone could lead to a finding of a violation.
For the states, a greater focus on abstract review may be largely uncontroversial, as they invited the Court in Resolution Res(2004)3 to: ‘as far as possible, to identify, […] what it considers to be an underlying systemic problem and the source of [a violation], in particular when it is likely to give rise to numerous applications, so as to assist states in finding the appropriate solution and the [CM] in supervising the execution of judgments’. Although this resolution is probably best known for having led to the pilot-judgment procedure, the text does not diminish the relevance of the invitation to that procedure. Arguably, the Convention does not prevent the Court from conducting an abstract review. Article 35 on ‘Examination of the case’ does not preclude this. The Court would probably invoke Article 34 to conclude that its review should in principle be concrete. However, as explained above, this provision concerns admissibility and not the review of the merits.
Moreover, the Court’s practice contains many instances of in abstracto review, even outside the pilot-judgment procedure. The Court incorporates abstract review into its assessment of individual facts and is not ‘fully consistent’ in either reviewing the reasonableness of legislation in the abstract or in the concrete, although it can be assumed that its review has become more abstract the last two decades. I will now turn to some examples of such abstract review.
The Court’s review of cases brought by (potential) victims as members of a class of people leads, per definition, to an abstract review, since the victim does not have to rely on individual factual allegations. For example, in cases concerning mass surveillance regimes the Court has developed ‘a considerable number of minimum requirements and sub-requirements’ for scrutinizing domestic legislation. In other contexts, the Court has also ‘defined a number of more general requirements based on the principles of democracy, pluralism and the rule of law that may be seen to relate to the legitimacy and quality of the legislative process’. It will also come as no surprise that the Court’s findings in KlimaSeniorinnen were very abstract, stating that ‘there were some critical lacunae in the Swiss authorities’ process of putting in place the relevant domestic regulatory framework (para 573).
Other abstract findings include that:
On the basis of its case-law, the guarantee of non-repetition does not seem to be a priority for the Court, as three examples will illustrate. First, the Court’s standard reiteration of the legal obligation of the states parties under Article 46(1) is that it is an obligation (para 655): ‘not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose […] the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects’.
The Court explicitly refers to the obligation to end and redress the violation, but not to the guarantee of non-repetition. Second, even in the pilot-judgment procedure, the Court sometimes imposes only compensatory and not preventive remedies, including when it finds a violation of Article 13, because there was ‘no effective domestic remedy, either preventive or compensatory’ (para 117). Third, even when the Court has found that there is a systemic problem, it does not necessarily invoke Article 46 at all, which also means that it does not emphasise the importance of non-repetition. Despite the lack of focus on the obligation to prevent new violations, it is crystal clear that this obligation exists. Indeed, when supervising the execution of a judgment, the CM examines whether ‘general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations’.
In the light of the above, I make two suggestions. First, the Court could consider, when outlining the obligations under Article 46(1), to mention not only the obligation to end and remedy the violation, but also the obligation to prevent new violations. Second, when the Court makes abstract findings as to the source of a violation, as suggested in section 2, it might consider accompanying this finding with a reference to Article 46(1), indicating that, in this case,the respondent state must consider taking general execution measures to prevent future violations. I am not suggesting that the Court reiterate this in the operative provisions of the judgment, because this is a legal obligation anyway, nor that the Court elaborate on what measures the state must take, because this is both controversial and difficult for the Court. However, such an indication could facilitate the adoption of general measures, as it would encourage the CM and its Execution Department to discuss the need for them and as ‘[e]xtensive non-compliance may stem from imprecision in how obligations are framed’.
My proposal builds on the Court’s current practice, since the Court has exceptionally stated that ‘the adoption of general measures requires the State concerned to prevent, with diligence, further violations similar to those found in the Court’s judgments’ (para 75). In addition, the Court sometimes already indicates that a state must take preventive execution measures.
Since my first suggestion is simply for the Court to point out that Article 46(1) ECHR requires the state to take measures to guarantee non-repetition, a legal obligation in any case, this proposal does not seem too controversial. The second proposal may be somewhat more controversial, because execution is the CM’s prerogative in principle (Article 46(2)). However, as I am not suggesting that the Court specifies very particular measures, this is not overly contentious. In addition, both proposals are based on existing practice.
In this blog, I suggested that the Court can do more to place the guarantee of non-repetition at the heart of its case-law, including by focusing on the context of a violation. Currently, there is a mismatch between the three stages through which a case passes: admissibility, merits and execution. While the states are required to take general measures to ensure non-repetition at the execution stage, admissibility requires a victim to allege an individual violation, and the Court usually establishes a violation in the individual case at the merits stage. Consequently, once a case reaches the execution stage, the larger context in which a violation took place is largely lost.
I proposed that, at the stage of admissibility, the Court can facilitate focus on the context of the violation by being more lenient in allowing actiones populares. Regarding the merits phase, I suggested that the Court could engage in abstract review whenever the alleged violation is not an ‘accident’ but is caused by a structural problem, be it practice, policy or legislation. Lastly, concerning the execution of a judgment, the Court could, when outlining the obligations under Article 46(1) as part of its general considerations, mention not only the obligation to end and remedy the violation, but also the obligation to prevent new violations. In addition, I suggested that, when the Court makes abstract findings as to the source of a violation, as also suggested, it might consider accompanying this finding with a reference to Article 46(1), indicating that, in this case,the respondent state must consider taking general execution measures to prevent future violations. Admittedly, it is uncertain whether my proposals will lead to real change on the ground. However, the Court should not be distracted by what it cannot control and focus on what it can control: the content of its judgments and its judgments currently lack a focus on the guarantee of non-repetition.
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