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Admissibility Before the Strasbourg Court: An Outlook on the EU-Law-Originated Applications

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Abstract

This chapter offers an examination of the procedure that Strasbourg Court will pursue once an EU-related application reaches its jurisdictional gates in a post-accession scenario, contextualized against a background of exceptional rules which Strasbourg may apply on an exceptional contracting party like the EU. The chapter responds to the research sub-question: ‘How should Strasbourg Court perform its admissibility jurisdiction on Luxembourg/EU-related cases, with an eye also on the exceptional admissibility standards? How may these decisions of Strasbourg Court look into EU legal order?’ The chapter watchfully examines Strasbourg’s admissibility standards applied on EU-related cases, playing with the flexibility clauses which the former may apply on EU-originated cases, while offering likely perspectives on such scenarios. Such flexibility standards are looked from the perspective of Strasbourg Court’s likely tendencies to become a court of first instance in cases when there are extremely difficult circumstances for the EU applicant to become reviewed by the Luxembourg Court first. The EU–Member States problems in relation to the parallel systems of available remedies are also considered in light of the Strasbourg’s admissibility rules. The chapter also addresses whether and how EU primary law violations may be filed at Strasbourg, in addition to a special analysis on the latter’s decisions nature of effect within EU legal order. The chapter concludes with the remark that Strasbourg Court may undoubtedly pass over some EU-law-autonomy safeguards and find cases admissible using numerous flexibility standards, which may definitely appear as interfering to EU law autonomy. The internal reception of Strasbourg decisions in EU law follows the same logic.

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Notes

  1. 1.

    Cf.: Conforti (2010), p. 83, who argues that if the Court would continue to uphold the principle of equivalent protection, then accession would make no sense in practice.

  2. 2.

    On these conditions, see also: Ribble (2010–2011), p. 214.

  3. 3.

    ECtHR, Mamatkulov and Askarov v. Turkey [GC]—46827/99, Judgment 4.2.2005, para. 100.

  4. 4.

    ECtHR, Mamatkulov and Askarov v. Turkey [GC]—46827/99, op. cit. note 3, para. 100.

  5. 5.

    ECtHR, Van Der Tang v. Spain, Application no. 19382/92, Judgment, Strasbourg, 13 July 1995, para. 53.

  6. 6.

    ECtHR, Klass and Others v. Germany, Application no. 5029/71, JUDGMENT, STRASBOURG, 6 September 1978, para. 33.

  7. 7.

    ECtHR, Burden v. The United Kingdom, Application no. 13378/05, JUDGMENT, STRASBOURG, 29 April 2008, para. 33.

  8. 8.

    ECtHR, Gorraiz Lizarraga and Others v. Spain, Application no. 62543/00, Judgment, Strasbourg, 27 April 2004, para. 35.

  9. 9.

    ECtHR, Gorraiz Lizarraga and Others, op. cit. note 8, para. 35; See also: ECtHR, Tauira and Others v. France, Application no. 28204/95, Commission decision of 4 December 1995, Decisions and Reports (DR) 83-B, p. 112.

  10. 10.

    ECtHR, Monnat v. Switzerland, Application no. 73604/01, Judgment, Strasbourg, 21 September 2006, para. 30 et seq.

  11. 11.

    A general argument, at: Raba (2013), p. 560.

  12. 12.

    ECtHR, Amuur v. France, Application no. 19776/92, Judgment, Strasbourg, 25 June 1996, para. 36; From a comparative perspective, the UN Human Rights Committee, in Disabled and handicapped persons in Italy v. Italy, has ruled that in order to get access to the Committee, one should claim ‘to be the victim of a violation by the State party concerned. It is not the task of the Human Rights Committee […] to review in abstracts national legislation as to its compliance with obligations imposed by the Covenant. It is true that, in some circumstances, a domestic law may by its mere existence directly violate the rights of individuals under the Covenant.’ (UN Human Rights Committee, Disabled and handicapped persons in Italy v. Italy, Communication No. 163/1984, U.N. Doc. CCPR/C/OP/2 at 47 (1990), para. 6.2); Being a victim of an abstract norm—theoretically—is therefore possible; hence, EU general acts—such as regulations—may directly make an applicant a victim of a human rights violation.

  13. 13.

    ECtHR, Amuur v. France, op. cit. note 12, para. 36; See also: ECtHR, Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238, p. 18, para. 34.

  14. 14.

    ECtHR, Karner v. Austria, Application no. 40016/98, Judgment, Strasbourg, 24 July 2003, para. 25.

  15. 15.

    Disappointed with this situation, see e.g.: Arnull (2003), p. 792.

  16. 16.

    ECtHR, Monnat v. Switzerland, Application no. 73604/01, op. cit. note 10, para. 33.

  17. 17.

    ECtHR, McCann and Others v. The United Kingdom, Application no. 18984/91, Judgment, Strasbourg, 27 September 1995.

  18. 18.

    ECtHR, Bowman v. The United Kingdom, 141/1996/760/961, Judgment, Strasbourg, 19 February 1998, para. 47.

  19. 19.

    On the importance of subsidiarity in international law, see: Carozza (2003), p. 79; The Court has ruled in Edwards v. United Kingdom that in this regard that in principle it ‘is not within the province of the European Court to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair […]’. ECtHR, Edwards v. United Kingdom, App. No. 13071/87, 15 Eur. Ct. H.R. (ser. A) 417, 431 (1992), para. 34/5.

  20. 20.

    ECtHR, Kudła v. Poland, Application no. 30210/96, Judgment, Strasbourg, 26 October 2000, para. 152; See also: Costa (2003), p. 456.

  21. 21.

    ECtHR, Kudła v. Poland, Application no. 30210/96, op. cit. note 20, para. 152; See also: ECtHR, Selmouni v. France [GC], Application no. 25803/94, ECHR 1999-V.

  22. 22.

    ECtHR, Takis Demopoulos and Others v. Turkey, Grand Chamber Decision As To The Admissibility of Application nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04, 21819/04, para. 69; See also: ECtHR, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996-IV.

  23. 23.

    ECtHR, De Wilde, Ooms and Versyp (“Vagrancy”) v. Belgium, Application no. 2832/66; 2835/66; 2899/66, Judgment, Strasbourg, 18 June 1971, para. 55.

  24. 24.

    Analysis (1997), p. 241.

  25. 25.

    ECtHR, Ringeisen v. Austria, Application no 2614/65, Judgment, Strasbourg, 16 July 1971, para. 89; See also: ECtHR, Lawless v. Ireland, decision of 30th August 1958 on the admissibility of Application No. 332/57, Yearbook of the Convention, Vol. 2, pp. 324–326.

  26. 26.

    ECtHR, Akdivar and Others v. Turkey, op. cit. note 22, para. 69.

  27. 27.

    ECtHR, Ringeisen v. Austria, op. cit. note 25, para. 89; See also: ECtHR, Lawless v. Ireland, Application No. 332/57, op. cit. note 25, pp. 324–326; In addition, it is important to mention that Art. 46.2.a ACHR, rather similarly, installs an identical standard prescribing that the rule on exhaustion does not apply if ‘the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated.’ The EU system of remedies may easily fit with this standard’s test.

  28. 28.

    The Court applied a similar argument in D.H. and Others v. The Czech Republic, wherein it ruled that ‘[i]n these circumstances, it considers that it would be unduly formalistic to require the applicants to exercise a remedy which even the highest court of the country concerned had not obliged them to use.’ See: ECtHR, D.H. and Others v. The Czech Republic, Application no. 57325/00, Judgment, Strasbourg, 13 November 2007, para. 118.

  29. 29.

    ECtHR, Kozacioğlu v. Turkey, Application no. 2334/03, Judgment, Strasbourg, 19 February 2009, para. 40; See also: ECtHR, İlhan v. Turkey [GC], no. 22277/93, § 59, ECHR 2000‑VII.

  30. 30.

    ECtHR, Kozacioğlu v. Turkey, op. cit. note 29, para. 40 [emphasis added]; See also: ECtHR, İlhan v. Turkey [GC], Application no. 22277/93, ECHR 2000-VII.

  31. 31.

    ECtHR, Kozacioğlu v. Turkey, op. cit. note 30, para. 40.

  32. 32.

    ECtHR, Financial Times Ltd and others v. The United Kingdom, Application no. 821/03, Judgment, Strasbourg, 15 December 2009, para. 43.

  33. 33.

    Something not accepted in Pafitis relating to the EU’s assumed violation of Art. 6 ECHR, see: Lawson (2005), p. 32.

  34. 34.

    Court of Justice of EU, Unión de Pequeños v Council, Case C-50/00, para. 40 et seq.

  35. 35.

    ECtHR, Karakó v. Hungary, Application no. 39311/05, Judgment, Strasbourg, 28 April 2009, para. 14; See also: ECtHR, Granger v. the United Kingdom (no. decision of 9 May 1988); ECtHR, Aquilina v. Malta, Application no. 25642/94, Judgment, Strasbourg, 29 April 1999, para. 39.

  36. 36.

    Court of Justice of EU, Apple Computer International v Commission, Case T-82/06, order of 19 February 2008.

  37. 37.

    ECtHR, Kozacioğlu v. Turkey, op. cit. note 29, para. 40 [emphasis added].

  38. 38.

    ECtHR, Jasinskis v. Latvia, Application no. 45744/08, Judgment, Strasbourg, 21 December 2010, para. 50 [emphasis added]; See also: ECtHR, T.W. v. Malta [GC], Application no. 25644/94, 29 April 1999.

  39. 39.

    A similar line of argument was presented by the Court in D.H. and others v. The Czech Republic, by ruling that: ‘It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies.’ See: ECtHR, D.H. and others v. The Czech Republic, Application no. 57325/00, Judgment, Strasbourg, 13 November 2007, para. 116.

  40. 40.

    ECtHR, Akdivar and Others v. Turkey, Application no. 21893/93, Judgment, Strasbourg, 16 September 1996, para. 68.

  41. 41.

    It is important to note the fact that the Strasbourg Court established in K.S. and K.S. AG v. Switzerland that the claimants have requested the reopening of proceedings, in which case the Court has ruled that ‘requests for the reopening of proceedings do not as a rule constitute an effective remedy within the meaning of Article 26 (Art. 26) of the Convention.’ See: ECtHR, K.S. and K.S. AG v. Switzerland, Application No. 19117/91, 12 January 1994, decision as to admissibility; Compared to the circumstances in Kokkelvisserij, the applicant’s request to reopen the proceedings were not something which they needed to do in order to become eligible to enter the gates of the Strasbourg Court. This speaks for the fact that only available remedies were needed to be used, but not those which are not in principle available or are extraordinary in nature.

  42. 42.

    Cf.: Jacque (2011), p. 1017/8, noting that the presidents of the two European courts have argued that the preliminary reference procedure under EU law may not ‘normally’ be considered a legal remedy.

  43. 43.

    ECtHR, Gäfgen v. Germany, Application no. 22978/05, Judgment, Strasbourg, 1 June 2010, para. 142 [emphasis added].

  44. 44.

    ECtHR, Ahmet Sadik v. Greece, Application no. 18877/91, Judgment, Strasbourg, 15 November 1996, para. 33.

  45. 45.

    Court of Justice of EU, C.I.L.F.I.T. v Ministry of Health, Case 283/81, Judgment OF 6. 10. 1982, part I.

  46. 46.

    Many of the preliminary questions may be indirect to the very claim raised by the applicant before the national court. See e.g. d’Oliveira et al. (2011), p. 139, in a Bundesverwaltungsgericht indirect preliminary reference question.

  47. 47.

    These two cases demonstrate the rather opened position of Luxembourg Court to recognizing the duties under international law as well: Court of Justice of EU, Poulsen and Diva, Case C-286/90 [1992] ECR 1-6019; Court of Justice of EU, Racke, Case C-162/96 [1998] ECR 1-3655.

  48. 48.

    A jurisdictional conflict on this issue between the two courts may not be ruled out, however. See: Olsen (2009–2010), p. 56.

  49. 49.

    Accord.: Rieder (2005), p. 83, who argues that since Mathews there were no more dispute on the supremacy of Strasbourg Court over Luxembourg, and the hierarchy produced therein; On the fact that EU will be obliged under international law to implement the Convention post-accession, see also Odermatt (2014), p. 14; The EU Court has generally held that EU is bound to international law ‘in the exercise of its powers’. See e.g.: Court of Justice of EU, Anklagemyndigheden v Peter Michael Poulsen and Diva Navigation Corp, Case C-286/90 [1992] ECR I-6019, para. 9.

  50. 50.

    Court of Justice of EU, Opinion 1/91, para 39; See also: Analysis (1997), p. 241; A similar argument was pushed by ECJ also in: Court of Justice of EU, Deutsche Shell AG v Hauptzollamt Hamburg-Harburg, Case C-188/91 [1993] ECR I-363, para. 17.

  51. 51.

    On the worries of the Court with this assertion, see: Eckes (2013), p. 259.

  52. 52.

    See a similar argument at: Lock (2012), p. 195.

  53. 53.

    Analysis (1997), p. 241; Contra generally: Groussot et al. (2011), p. 5.

  54. 54.

    Cf.: Quirico (2010), p. 45, who considers that a scenario like this may put in danger the autonomy of EU law (especially Art. 19(1) TEU).

  55. 55.

    ‘It is unlikely that the ECJ envisaged a bindingness akin to a doctrine of stare decisis since such a doctrine does not exist anywhere in EU law or international law.’ Lock (2012), p. 195.

  56. 56.

    Cf.: Lock (2012), p. 195/6, who argues that this nature of bindingness may not go beyond the accepted international law standard.

  57. 57.

    Franklin (2010–2011), p. 158 (‘[…] accession to the Convention might lead to a surrendering of its jurisdiction with regards to fundamental rights protection in the Community, with its decisions being made subject to review by a “higher” judicial authority - the ECtHR in Strasbourg.’).

  58. 58.

    Rieder (2005), p. 100 (‘Prioritizing the […Strasbourg Court …] over the ECJ would weaken the integrative authority of the ECJ at least in the field of human rights […]’).

  59. 59.

    The logical path for this argument flows from: Eckes (2013), p. 279/10; See also a general approach on this case, at: De Londras and Kingston (2010), pp. 409 et seq.

  60. 60.

    Accord: ICJ considers that human rights under international law comprise jus cogens norms which may not be derogated. See an exemplary case on this: International Court of Justice, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), judgment of 3 February 2006 (Jurisdiction of the Court and Admissibility of the Application), para. 64; On the latter principle, see also: Inter-American Court of Human Rights, Advisory Opinion OC-18/03 of 17 September 2003 (requested by the United Mexican States), para. 97.

  61. 61.

    On the other hand, Yusuf seems rather contradictory to the previous argument, as the Court there noted the fact that EU is bound to the hierarchy of international law, which would mean that the EU Court does also accept the supremacy of Strasbourg Court in that light. See a similar argument on Yusuf, at: Defeis (2007–2008), p. 6 et seq; One should also mention the argument that Kadi had practically dealt with the lack of access to a court based on law, which may not be invoked as an argument before EU Court if a case has already gone through the filter of Strasbourg Court (as the latter would have already offered access to court to that case, which makes it totally contrary to the Kadi scenario).

  62. 62.

    Heringa and Verhey (2011), p. 17; Lenaerts and de Smijter (2001), p. 99; See the following three cases showing a clear deference of Luxembourg to Strasbourg Court: Court of Justice of EU, Bauer Verlag, C-368/95 [1997] ECR I-3689, para. 26; Court of Justice of EU, Grant v South West Trains, C-249/96 [1998] ECR I-621, para. 34; Court of Justice of EU, Roquette Freres SA v Directeur General de la Concurrence, de la Consommation et de la Repression des Fraudes, C94/00 [2002] E.C.R. I-9011, para. 29; Cf.: Balfour (2005), p. 16 (‘It is not surprising that the ECJ has, on occasion, adopted conflicting interpretations of the Convention that fail to meet the ‘minimum standards’ set by the ECtHR.’).

  63. 63.

    Wetzel (2003), p. 2853 (‘[…] each Court will draw upon the same Strasbourg jurisprudence, minimizing the possibility of continuing grossly divergent ECHR interpretations.’).

  64. 64.

    Court of Justice of EU, Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle fur Getreide und Futtermittel, Case 11/70, [1970] E.C.R. 1125, paras. 3–4.

  65. 65.

    ECtHR, Sejdić and Finci v. Bosnia and Herzegovina, Applications nos. 27996/06 and 34836/06, Judgment, Strasbourg, 22 December 2009, para. 39 et seq.

  66. 66.

    Eckes (2013), p. 282.

  67. 67.

    E.g.: Lock (2010), p. 783.

  68. 68.

    See also: Lock (2010), p. 790; Eckes (2013), p. 282; Rieder (2005), p. 82.

  69. 69.

    Competence-competence on this still remains on Member States. See e.g.: Bříza (2009), p. 151.

  70. 70.

    Lock (2010), p. 790; See also: Payandeh (2011), p. 9; Cf.: Editorial (2013), p. 473, which questions whether Member States constitutional courts may find unconstitutional if the EU Charter provides more extensive human rights protection, and whether the primacy of EU law would apply unreservedly; See also more on national constitutional courts sometimes blocking positions on EU law primacy at the Member States’ legal orders, at: Martinico (2012), p. 419/20.

  71. 71.

    Federal Republic of Germany Bundesverfassungsgericht, Second Senate of 30 June 2009, 2 BvE 2/08, 2 BvE 5/08, 2 BvR 1010/08, 2 BvR 1022/08, 2 BvR 1259/08, 2 BvR 182/09; See: Thym (2013), p. 391, on how this strategy of the German constitutional court had resulted in Luxembourg Court being self-restrained not to make national constitutional laws irrelevant, something which may change passively with EU becoming a party on its own right in the ECHR system.; See also: Olsen (2009–2010), p. 62.

  72. 72.

    See: Bříza (2009), p. 143, who points to the court when it was found acting ex ante by finding the Lisbon Treaty constitutional but did not give up to control its constitutionality.

  73. 73.

    Hinarejos (2009), p. 113, showing how the Court played the role of a negative legislator on the third pillar’s constitutionality, not willing to engage very directly and actively into the review of the treaty.

  74. 74.

    Payandeh (2011), p. 9.

  75. 75.

    In the Lisbon case, although the decision of Germany on Lisbon Treaty was found constitutional, the Extending Act was declared partially unconstitutional. See: Bieber (2009), p. 391 et seq, to understand the argument that national constitutional courts might still be a very powerful standing point for the authorship and origin of EU primary law.

  76. 76.

    Cf.: Bossuyt and Verrijdt (2011), p. 363 et seq, wherein one can see that some EU Member States do tend to keep recognizing their constitutions (in hierarchical terms) as either softly in the same position with the EU Treaties or sometimes even above them; This was not the case, however, with the Czech example, at: Bříza (2009), p. 143/4; See also: van Rossem (2009), p. 203, which argues that Member States may not invoke the EU law—as established by VCLT—as a reason for violations of ECHR. The same argument must apply on the EU as well.

  77. 77.

    See also: Suchocka (2007).

  78. 78.

    Lock (2010), p. 790; Cf.: to the European Arrest Warrant Framework Decision reviewed by the Polish Constitutional Court, wherein the latter—interestingly enough—found no constitutional means to rationalize it but decided that the Framework Decision be applied as long as the national constitution is not reformed, at: Hinarejos (2009), p. 104.

  79. 79.

    Accord: Jackson (1992), pp. 310–340.

  80. 80.

    ECtHR, Demopoulos v Turkey (App. Nos 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 & 21819/04) (2010).

  81. 81.

    Cf.: Gragl notes that it was initially thought to exclude the primary law from the accession agreement and Strasbourg’s jurisdiction. In view of Gragl, there seem three arguments against excluding primary law from the agreement: first, due to the fact that the EU would become highly privileged against other contracting parties, second, the Luxembourg Court is well capable of addressing problems in relation to the primary law issues that raise fundamental rights implications as there is now the legally-binding Charter, and, third, such exclusion would invite the Strasbourg Court to review the division of borders between primary and secondary law the only way to portray its jurisdiction on EU-originated cases, therefore interfering to the EU law autonomy. See: Gragl (2013), p. 136/7.

  82. 82.

    Some Member States had originally proposed excluding the responsibility of the Union for primary law violations during the DAA negotiations, at: Groussot et al. (2011), p. 4.

  83. 83.

    Groussot et al. (2011), p. 9; See also: Gragl (2013), p. 136, who mentions the initial ideas that had pushed for excluding the primary law from the accession agreement, which would have immunized the EU from its obligation to have its treaties on its own capacity complied with the Convention standards. Gragl in this regard argues that it would have been a wrong decision to exclude primary law from the jurisdiction of the accession agreement, as that would have produced an unequal treatment for those persons subject to primary law violations compared to those subject to the secondary law violations.

  84. 84.

    On the latter point, see e.g.: van den Berghe (2010), p. 113.

  85. 85.

    See e.g.: Licková (2008), p. 473/4.

  86. 86.

    De Schutter (2014), p. 198; See also: Gragl (2013), p. 74, who, referring to Heer-Reismann, argues that post-accession the risk of potentially conflicting obligations between the two treaty regimes will not exist anymore, as there is will an institutional system in place to coordinate and potentially resolve conflicts.

  87. 87.

    De Schutter (2014), p. 198; Cf.: Gragl rightly brings the question of unequal treatment that the EU compared to other high contracting parties would maintain if Bosphorus will remain in force post-accession. Furthermore, Gragl points out that it is not the aim of accession to subject the EU to unequal treatment compared to other contracting parties in the Convention system. In this regard, Gragl takes the example of MSS case in which the Strasbourg Court basically demonstrated that it does not wish to apply the equivalent protection standard on national law even if the latter comes under the umbrella of EU law (if there are possibilities for the member state to depart from that law exceptionally). In this regard, Gragl notes that it would be wise even to revoke entirely this presumption post-accession, as this step would finally remedy the ‘anomaly’ of the EU being a privileged contracting party to the Convention system. See: Gragl (2013), p. 75.

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  1. Faculty of Law and Criminology JURI Department, Vrije Universiteit Brussels, Brussels, Belgium

    Fisnik Korenica

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Korenica, F. (2015). Admissibility Before the Strasbourg Court: An Outlook on the EU-Law-Originated Applications. In: The EU Accession to the ECHR. Springer, Cham. https://doi.org/10.1007/978-3-319-21759-8_10

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