Tigroudja, Hélène

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Could the collective guaranteemechanism be detrimental toindividuals’ international litigationcapacity?Hélène Tigroudja 2021-04-30T08:00:22International Human Rights Bodies are familiar with the issue of coexistence ofmultiple adjudication proceedings. However, the issues currently raised by theincreasing number of inter-State applications brought before the European Court ofHuman Rights (‘ECtHR’) under Article 33 of the European Convention on HumanRights (‘ECHR’), and especially, their coexistence with individual applications underArticle 34 ECHR that concern the same legal issues and are based on the samefactual background are unprecedented. The ECHR itself and the Rules of Courtdo not provide any guidance on the coexistence of the two types of applications.While Article 35 (2) (b) ECHR addresses the issue of international parallel actions,this provision is not applicable to internal parallel actions, i.e. other applicationspending before the same court, namely the ECtHR. Therefore, this short noteaims at discussing the current practice and some of the challenges raised by suchapplications. A particular focus lies on the autonomy of the affected individuals totake legal action. The need to affirm the absence of hierarchy between Article 33 and 34 ECHR Before exploring the technical issues, it should be kept in mind that the ECHR isbased on the coexistence of two mechanisms of protection that should be treatedwith equal importance through the reform process. ‘Inter-States application’ is oftendescribed as the technical means to achieve a collective guarantee. The philosophyunderlying this inter-State mechanism is well-known and constantly highlighted inthe current reform process. The ECHR has a special content that creates a certain“European public order.” Accordingly, each State is the bearer of erga omnes partesobligations and is entitled, through Article 33 ECHR, to defend the European publicorder. However, behind this fiction, one should ask whether the current pendinginter-State complaints are genuinely aimed at defending the so-called “Europeanpublic order” or whether they serve in fact private State interests, as is the casebefore the International Court of Justice. This question is often left out from thediscussion. In practice, the Court has proceeded to give a certain priority to inter-State cases, by adjourning the examination of individual applications as long asthe “overarching issues” that are deriving from a parallel inter-State dispute havenot been decided (e.g. Berdzenishvili and Others v. Russia, para. 4). To justify thispriority policy in favor of the inter-State mechanism, academics and other experts- 1 -affirm that Article 33 ECHR serves a “public goal”, while Article 34 ECHR wouldserve a “private goal”. The reality is much more complex and should be questioned.In addition, with regard to the individual complaint mechanism, described by theEuropean Court as “one of the keystones” (Klass et al. v. Germany, para. 34) ofthe ECHR, it should be kept in mind that the recognition of the procedural means todefend one’s rights is a crucial feature of the international legal personality of privatepersons. From a theoretical point of view, this is one of the major achievements ofthe ECHR. Therefore, the priority given to a type of action (inter-State complaints)has an important impact on the other type of action (individual complaints). In otherwords, the choices that are being made to improve the efficiency of the Court arenot only of a technical nature and should not be treated as such. To give priority tointer-State actions over individual complaints may radically change the nature of theECHR mechanism, and the procedural position of (in)dependence of the individualsvis-à-vis the States.Current practice of the Court ven if the situation of potential overlap between outstanding inter-State andindividual complaints is rather new, some principles of coexistence can already bederived from the jurisprudence.First, there is no rule of exclusion between an Article 33 ECHR complaint and anArticle 34 ECHR complaint. As indicated in Varnava and others v. Turkey, an inter-State application on the same facts does not mean that the individual complaintlacks legal interest and should be struck off the list (para. 119). In Varnava, therespondent State argued that the “disappearances of the missing” persons hadalready been “subject to examination and adjudication” (para. 114), therefore callinginto question the legal interest in deciding the individual applications. In response,the Court recognized that the previous Cyprus v. Turkey judgment, “included findingsof violations under Articles 2, 3 and 5 ECHR concerning missing Greek Cypriotsand their families.” (para. 118). However, the Court added that the criteria to reject acomplaint under Article 35 (2) (b) ECHR (parallel proceedings) were not met (para.118). The Varnava principle means first that the Court does not apply by analogy theprohibition of parallel international actions to parallel internal actions. Second, evenwhen an individual situation is addressed in an inter-State application, the individualsstill have a legal interest in lodging a complaint under Article 34. Therefore, theirlegal right to lodge an application is not eclipsed by previous inter-State complaints.This position was later backed by the 2018 Copenhagen Declaration, highlightingthe importance of not limiting the Court’s jurisdiction (para. 54(c) of the declaration),and reaffirmed by the Court in its jurisprudence, e.g. in Berdzenishvili et al. v. Russia(para. 37).Second, it also derives from the practice of the Court that some statements madeon the factual background in an inter-State application are retained in individualcomplaints. The question of administrative practice or other factual elementsanalyzed in an inter-State complaint are used when dealing with an individualcomplaint (para. 49). This means that even if the two complaints are of differentnature, the Court takes duly account of the statements and conclusions reached in- 2 -its previous decisions. This approach is welcome, since it significantly reduces therisk of contradiction and inconsistency. By consequence, this fear which has beenput forward by some States in the reform process, should not be overestimated. Third, under the current practice of the Court, in case of parallel actions, priority isgiven to the examination of inter-State applications, as outlined in the Working groupreport of 2020 (para. 41). This priority plays regardless of the date of introduction,i.e. regardless of the fact that the individual complaints may have been lodgedbefore the inter-State application (Berdzenishvili, para. 4). Based on this priority,the individual applications in relation with the content of the inter-States action isadjourned, even if not totally frozen. Along the same lines, when the just satisfactionissue is pending in an inter-State application, the Court may adjourn the examinationin individual complaints, as it did in some individual cases against Russia (e.g.Berdzenishvili, para. 148).Some challenges and unsolved questionsAt the outset, some questions should be considered and have not received theattention they deserve: whether the outstanding inter-States applications really servea collective goal and the European public order; whether the two mechanisms shouldnot rather be preserved on an equal footing; and whether the Court, as a HumanRights Court, has reflected sufficiently deeply upon the shift of its role. It is notcertain that the Court is equipped, from a legal point of view, to address the issuesStates are raising. This also transpires from the Georgia v. Russia (II) judgement :“If, as in the present case, the Court is to be entrusted with the task of assessingacts of war and active hostilities in the context of an international armed conflictoutside the territory of a respondent State, it must be for the Contracting Parties toprovide the necessary legal basis for such a task.” (emphasis added, para. 142).Having said that, the question remains, what does the priority policy in favor of inter-States applications mean for individual applications?First, the impact of adjourning individual applications is problematic and shouldbe addressed. Indeed, due to the complex factual background, numerous legalquestions and pieces sent by the States Parties to the Court, the proceeding in inter-State cases may be excessively long, first to reach an admissibility decision, then (incase of split) a decision on the merits, third, a decision on just satisfaction and finally,the implementation of the judgment. Based on the previously decided cases, it maytake more than twenty years before going back to an individual application, whichraise serious concerns in terms of legitimacy of the Court and quality of the justicethat it delivers. Second, the issue of just satisfaction has been raised in the current discussionof the Steering Committee and the question whether a list of the victims shouldbe indicated at the outset of an inter-State application or when dealing with justsatisfaction (paras. 6 and 45). In addition, some concerns were raised about thepossibility of an individual being granted monetary compensation twice (para. 42).However, this concern must not be overestimated as Article 41 ECHR providesa discretionary power to the Court to grant for just satisfaction (“if necessary”).Therefore, if a victim has already been granted just satisfaction on the basis of an- 3 -inter-State application, the Court can take this into account when assessing therelevance and amount of reparation in the individual application, and thus avoid anyduplication.On just satisfaction, in Cyprus v. Turkey, the Court addressed the question of theapplicability of Article 41 ECHR to inter-State applications, referring to the Diallocase dealt with by the ICJ (paras. 39-47). However, regarding the content of justsatisfaction, the statement of the Grand Chamber is limited. In Georgia v. Russia(I), the Court also reminded that there are no “punitive or exemplary damage” tobe granted under Article 41 ECHR (para. 75). Furthermore, the Court explainedits “methodology” for awarding just satisfaction in case of non-pecuniary damage(paras. 68-80).Therefore, the current practice is extremely limited. Nevertheless, due to the massiveand large-scale nature of violations of human rights which are dealt with in inter-State applications, the potential material damage suffered by thousands of victims,the question of just satisfaction should be renewed. It could also take inspiration fromcomparative practice, especially that of the International Criminal Court and the Inter-American Court (see Article 35-2 of the Rules of Procedure of the Inter-AmericanCourt of Human Rights, as exemplified in Chichupac v. Guatemala, 2016, paras.63-65, 272-275), where both the adequate forms of reparation and the problem ofidentification of victims were addressed. In addition, there are important works in thefield of transitional justice that could also be helpful. In his 2014 report, the formerUN Special Rapporteur on reparation analyzed the limits of a model of reparationthat relies on courts. He highlighted that redress in post-conflict situations or in caseof massive violations of human rights does not only mean to “distribute indemnities”but implies other actions and reflections that are totally absent from the Court’spractice (para. 47). Third, in case of a friendly settlement in an inter-State application, the reform wouldhave to be very clear on the impact of this settlement both on the admissibility,on the merits and on the just satisfaction to be granted to the victims in case ofviolations of the ECHR (on friendly settlements, see Keller/Piskóty and Wenzel). ConclusionAs highlighted by President Spano in his opening statement to the Conference, theEuropean Court is facing “exceptional challenges” due to parallel inter-State andindividual applications, which deal with complex factual backgrounds, allegations ofadministrative practices and massive violations of human rights. As also underlinedby the Secretary-General of the Council of Europe, Pej#inovi# Buri#, the Courthas to deliver justice in cases of large-scale violations of human rights. In thesecircumstances, technical and pragmatic reforms must be envisaged. However,one of the central pillars of the ECHR must also be preserved: one of its greatestachievements, i.e. the individual right of application. The words of the Court inKlass et al. v. Germany should be kept in mind: “The procedural provisions of theConvention must, in view of the fact that the Convention and its institutions wereset up to protect the individual, be applied in a manner which serves to make thesystem of individual applications efficacious.” (para. 34).- 4 - - 5 -

Could the collective guarantee mechanism be detrimental to individuals’ international litigation capacity?

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Could the collective guarantee mechanism be detrimental to individuals’ international litigation capacity?

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