This practical guide to the conditions of admissibility of individual applications is to be seen in the same context. It is designed to present a clearer and more detailed picture of the conditions of admissibility with a view, firstly, to reducing as far as possible the number of applications which have no prospect of resulting in a ruling on the merits and, secondly, to ensuring that those applications which warrant examination on the merits pass the admissibility test. At present, in most cases which pass that test, the admissibility and merits are examined at the same time, which simplifies and speeds up the procedure.
This document is aimed principally at legal practitioners and in particular at lawyers who may be called upon to represent applicants before the Court. All the admissibility criteria set forth in Articles 34 (individual applications) and 35 (admissibility criteria) of the Convention have been examined in the light of the Court’s case- law. Naturally, some concepts, such as the six-month time-limit and, to a lesser extent, the exhaustion of domestic remedies, are more easily defined than others such as the concept of “manifestly ill-founded”, which can be broken down almost ad infinitum, or the Court’s jurisdiction ratione materiae or ratione personae. Furthermore, some Articles are relied on much more frequently than others by applicants, and some States have not ratified all the additional Protocols to the Convention, while others have issued reservations with regard to the scope of certain provisions. The rare instances of inter-State applications have not been taken into account as they call for a very different kind of approach. This guide does not therefore claim to be exhaustive and will concentrate on the most commonly occurring scenarios.
Document summaries the court’s case law in relation to domestic violence, genital mutilations, rape, violence and social exclusion, violence at the hands of state authorities and violence in public places.
12 cases dealing with domestic violence refer to the violation of different articles of the European Convention of human rights, namely of the article 2 on the right to life, article 13 on the right to an effective remedy, article 8 on the right to respect for family life, prohibition of inhuman or degrading treatment and article 14 on prohibition of discrimination. Both cases relating genital mutilation against Austria and Ireland were declared inadmissible for the reasons of insufficient protection of the young Nigerian girls that should be provided by their parents. 5 cases dealing with rape reaffirmed the violation of articles 3 on the prohibition of inhuman or degrading treatment or punishment, article 8 and artcile 13 mentioned above. The case of violence and social exclusion confirmed violation of the article 3 whereas the violence at the hands of state authorities brought forward violation of the article 3, artcile 14 and article 11 on freedom of assembly. The last case presented in the factsheet deals with the violence in public places giving declaring the violation of the article 3 and article 8.
1.The case originated in an application (no. 74839/10) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Moldovan national, Ms Lidia Mudric (“the applicant”), on 21 December 2010.
2.The applicant, who had been granted legal aid, was represented by MsD. Străisteanu, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, MrV.Grosu.
3.The applicant alleged, in particular, that the authorities had not discharged their positive obligations under Articles 3, 14 and 17 of the Convention to protect her from domestic violence and to punish her aggressor.
4.On 18 March 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
5.Third-party comments were received from the Equal Rights Trust, a non-governmental organisation based in London, the United Kingdom, which had been given leave by the President to intervene in the procedure (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court). The Government replied to those comments (Rule 44 § 5).
Facts – In February 2001 the applicant applied to a district court to bring a private prosecution after allegedly being beaten by her partner on five separate occasions in January and February 2001. In January 2002 the court forwarded her complaint to the public prosecutor, ordering him to start his own pre-trial criminal investigation; the applicant’s partner was then charged with systematically causing the applicant minor bodily harm. The investigation was twice halted by police investigators for lack of evidence, but on each occasion was reopened on appeal on the grounds that it had not been sufficiently thorough. The public prosecutor discontinued the investigation in June 2005 as a legislative reform in May 2003 meant that prosecutions in respect of minor bodily harm now had to be brought by the victim privately unless the case was of public interest or the victim could not protect her rights through a private prosecution. The district court upheld that decision. When the applicant lodged a new request to bring a private prosecution, this was refused without examination of the merits as the prosecution had become time-barred.
1. The case originated in an application (no. 61382/09) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Moldovan nationals, Ms O. B., Mr V. B. and Mr I. B. (“the applicants”), on 19 November 2009.
2. The applicants were represented by Mr A. Bivol, a lawyer practising in Chişinău. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.
3. The applicants alleged, in particular, that Mrs O. B. (‘the first applicant’) had been subjected to violence from her ex-husband and that the other applicants had witnessed such violence and been affected by it, while the State authorities had done little to stop such violence and prevent it from happening again.
In the decision Eremia and Others v. the Republic of Moldova, the European Court of Human Rights held that the Republic of Moldova has violated Articles 3, 8 and Article 14 in conjunction with Article 3 of the European Convention of Human Rights for failing to prevent a husband (working as a police officer) from repeatedly beating his wife in front of their two teenage daughters. The applicants in this case were three Moldovan national women; the first applicant, Lilia Eremia, and her two daughters (second and third applicants, Doina and Mariana Eremia). The mother was repeatedly beaten by her husband, a police officer, in front of their two daughters. In addition to the physical and mental suffering of the mother, the two girls’ psychological well-being was adversely affected.
The facts: On the first applicant’s request, a protection order had been issued against the violent husband, who did however not respect the order. Finally, the Moldovan Courts stood on the husband’s side by upholding his appeal and partly revoking the protection order. The first applicant had filed a criminal complaint and had claimed that she has been pressured by other police officers to withdraw the complaint. Although a criminal investigation had been finally launched, and substantive evidence of the husband’s guilt has been found, the prosecutor decided to suspend the investigation for one year subject to the condition that the investigation would be reopened if the husband committed another offence during that time. The prosecutor based his decision on the consideration that, the husband had committed “a less serious offence” and “did not represent a danger to society.”
The European Court of Human Rights found that the Northern Ireland authorities had not failed in their duty to respond to domestic violence perpetrated against the applicant, Ms Irene Wilson, and her complaint was deemed inadmissible.
On 20 October 2007 the applicant was assaulted by her husband, Scott Wilson. She suffered a severed artery on the right side of her head and multiple bruising.
Mr Wilson was arrested and charged with causing grievous bodily harm with intent to do grievous bodily harm, contrary to section 18 of the Offences against the Person Act 1861. After considering the available evidence, the Public Prosecution Service of Northern Ireland (PPS) decided that there was insufficient evidence of intention to do grievous bodily harm and the charge was reduced to one of grievous bodily harm contrary to section 20 of the same Act.
Mr Wilson pleaded guilty to the section 20 charge and was sentenced to eighteen months’ imprisonment, which was suspended for three years.
The applicant alleged violations of her human rights under the European Convention on Human Rights and made several complaints regarding the criminal proceedings, including that the sentence was unduly lenient and was much lower than would have been delivered had the offence occurred outside marriage.
1. The case originated in an application (no. 57693/10) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Ms Matild Kalucza (“the applicant”), on 25 September 2010.
2. The applicant was represented by Ms G. Zsemlye, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Agent, Ministry of Public Administration and Justice.
3. The applicant complained that the authorities had failed to respect her rights under Articles 2, 3 and 8 of the Convention insofar as they did not comply with their positive obligations, as a result of which she was forced to live with a person who constantly abused her physically and psychologically.
2. The applicants were represented by Mr S.S. Marinov, manager of Civil Association Regional Future, Vidin. The Italian Government were represented initially by their Co-Agent, Mr N. Lettieri, and subsequently by their Co-Agent, Ms P. Accardo. The Bulgarian Government were represented initially by their Agent, Ms N. Nikolova, and subsequently by their Agent, Ms M. Dimova.
3. The applicants alleged, in particular, that there had been a violation of Article 3 in respect of the lack of adequate steps to prevent the first applicant’s ill-treatment by a Serbian family by securing her swift release and the lack of an effective investigation into that alleged ill-treatment.
P. was subsequently admitted to a hospital in Warsaw, where she was informed that the hospital was facing pressure not to perform the abortion and had received numerous e-mails criticising the applicants for their decision. P. also received unsolicited text messages from the priest and others trying to convince her to change her mind. Feeling manipulated and helpless, the applicants left the hospital two days later. They were harassed by anti-abortion activists and eventually taken to a police station, where they were questioned for several hours. On the same day, the police were informed that the Lublin Family Court had ordered P.’s placement in a juvenile shelter as an interim measure in proceedings issued to divest her mother of her parental rights on the grounds that she was pressurising P. into having the abortion. In making that order the court had regard to text messages P. had sent to her friend saying she did not know what to do. Later that day, the police drove P. to Lublin, where she was placed in a juvenile shelter. Suffering from pain, she was taken to hospital the following day, where she stayed for a week. A number of journalists came to see her and tried to talk to her. After complaining to the Ministry of Health, the applicants were eventually taken in secret to Gdańsk, some 500 kilometres from their home, where the abortion was carried out.
The family court proceedings were discontinued eight months later after P. testified that she had not been forced by her mother to have an abortion. Criminal proceedings that had been brought against P. for suspected sexual intercourse with a minor were also discontinued as was the criminal investigation against the alleged perpetrator of the rape.
1.The case originated in an application (no. 49669/07) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms P.M. (“the applicant”), on 25 October 2007.
2.The applicant was represented by Mr V.Vasilev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of Justice.
3.The applicant alleged, in particular, that the investigation into sexual offences of which she had been a victim had been ineffective, and that she had not had an effective domestic remedy in this respect.
The strengths and weaknesses of different human rights enforcement regimes are typically assessed from a vantage point that evaluates each type of mechanism in isolation from others. From this perspective, human rights courts are sometimes regarded as the “gold standard” in human rights enforcement because they possess what their far-more-common enforcement brothers — reporting and monitoring mechanisms — lack: The authority to impose sanctions on states that have violated their human rights obligations. When viewed side by side with human rights courts, reporting and monitoring mechanisms are frequently found wanting.
In fact, however, reporting and monitoring mechanisms have strengths as well as weaknesses. Moreover, they support treaties that have substantive obligations that overlap those found in treaties that are enforced by human rights courts. Once the connections between the treaties are taken into account, it follows that the treaties’ enforcement mechanisms also may impact one another. Viewing enforcement as an integrated phenomenon reveals a much more nuanced and complicated picture of the strengths and weaknesses of different types of enforcement mechanisms than is typically depicted when they are viewed as acting in isolation from one another.
Recognizing that different regimes of human rights treaty enforcement can be integrated requires re-conceiving the coercive and persuasive influence of mechanisms that have no direct sanctioning authority. Far from being “toothless,” these enforcement mechanisms have the potential to directly impact human rights courts with strong enforcement authority. Moreover, the ability of the courts to identify non-compliant behavior is strengthened through their interactions with other treaties’ reporting mechanisms.
The purpose of the current overview is to set out the case-law principles for the new admissibility criterion under Article 35 § 3 (b), as developed by the Court during the first two years of its operation. It is to be recalled that application of the criterion was reserved exclusively to Chambers and the Grand Chamber1 from 1 June 2010 until 31 May 2012. In accordance with Article 20 of Protocol No. 14, the new provision began to apply to all applications pending before the Court, except those declared admissible.
The Applicants were a mother and two daughters who arrived in Ireland in January 2005. Mrs. Izevbekhai applied for declarations of refugee status on her own behalf and on behalf of her daughters. The basis of her claim for refugee status was that she was in fear for her own life and the lives of her daughters if they were returned to Nigeria, as a result of threats from the family of her husband to carry out female genital mutilation on her daughters. She claimed that an elder daughter had died in Nigeria as a result of complications arising from female genital mutilation. The Applicants’ applications for refugee status in Ireland were refused, and they made representations to the Minister for leave to remain temporarily in the State. These representations were rejected and the Minister made deportation orders in respect of all three Applicants in November 2005. Mrs. Izevbekhai went into hiding and her children were taken into care by the HSE. She was later apprehended by Gardaí and placed in detention. The Applicants obtained the leave of the High Court (McKechnie J.) to challenge the deportation orders by way of judicial review but the substantive applications were refused by the High Court (Feeney J.) in January 2008. In March 2008, the Applicants made applications to the Minister for subsidiary protection pursuant to the European Communities (Eligibility for Protection) Regulations (S.I. No. 518) 2006. The Minister refused to consider their applications for subsidiary protection because the deportation orders had been made before the coming into force of the Regulations. In an earlier case (N.H and T.D. v. Minister for Justice and Law Reform  IEHC 277) the courts had identified a discretion on the part of the Minister to accept such late applications, but the Minister refused to exercise this discretion in favour of the Applicants. In March 2008 the High Court (Edwards J.) granted to the Applicants leave to apply for judicial review of the Minister's decision. In January 2009, the High Court (McGovern J.) delivered judgment on the substantive application for judicial review, and held that the Minister had acted properly. The Applicants appealed this decision to the Supreme Court.
In the meantime, the Minister’s officials reopened their investigations into Ms Izevbekhai’s claims about the death of her eldest daughter in Nigeria. The Minister concluded that the documents relied upon by Ms Izevbekhai in support of her claim were forgeries and that no such child had ever existed. Affidavits to this effect were filed in the Supreme Court.
Following the hearing on the preliminary issue of whether the Minister had jurisdiction to entertain the application for subsidiary protection, the Supreme Court found that he had no discretion to do so. Consequently, the substantive appeal did not proceed and thus no findings were made by the Supreme Court as regards the Minister’s allegations of forgery.
The Applicants took their case to the ECHR and complained under Article 3 that there was a real risk that the minor Applicants would be exposed to FGM if they were expelled to Nigeria. They also invoked Articles 6, 13 and 14 of the Convention about the domestic remedies available to them in that respect. The ECHR found that the information presented by the Government with respect to the documents relied upon by Ms Izevbekhai gave strong reasons to question the veracity of the Applicants’ core factual submission concerning the death of a child in Nigeria as a result of FGM. The Court considered the Applicants’ response to the core issue of credibility to be unsatisfactory.
Facts – The applicant fled Nigeria in May 2003 and applied for asylum in Austria on the grounds that she was at risk of female genital mutilation (FGM) in her own country. The Federal Asylum Office rejected her request after finding that, even though her statements were credible, she had the alternative of living in another province of Nigeria where FGM was prohibited by law. The applicant lodged a complaint against that decision with the asylum court, but it was ultimately rejected. The Constitutional Court declined to examine the question after finding that it did not raise any issue of constitutional law. In her application to the European Court, the applicant complained under Article3 of the Convention that she ran the risk of being subjected to FGM if expelled to Nigeria and that relying on an internal flight alternative and moving to another part of Nigeria as a single woman without her family to help her would also violate her rights under that provision.
Law – Article3: It was not in dispute that subjecting any person, child or adult, to FGM would amount to ill-treatment contrary to Article3 (see also Izevbekhai and Others v. Ireland (dec.), no.43408/08, 17May 2011). The Court noted, however, that while the domestic authorities had found that the applicant’s fear of being forced to undergo FGM in Nigeria was well-founded they considered that she disposed of an internal flight alternative within the country. The Court therefore had to assess the applicant’s personal situation in Nigeria. The applicant, who was thirty-seven years old, had obtained school education for at least thirteen years and had worked as a seamstress for eight years. While it might be difficult for her to live in Nigeria as an unmarried woman without the support of her family, the fact that her circumstances there would be less favourable than those she enjoyed in Austria could not be regarded as decisive. Owing to her education and work experience as a seamstress, there was reason to believe that she would be able to build up her life in Nigeria without having to rely on the support of family members.
The report is found under the Case-law research reports heading as "Use of Council of Europe treaties in the case-law of the Court."
This document, which has been prepared by the Research and Library Division of the Court, contains a table listing references that have been made in the judgments and decisions of the Court to the Council of Europe treaties up to 30 June 2011. Fifty-six treaties have been cited in the Court’s case-law. The European Social Charter of 1961, revised in 1996, is the treaty that has been the most referred to.
The table covers conventions to which reference is made in any part of the Court’s judgments and decisions, including the parties’ submissions and dissenting opinions, as well as treaties that have been referred to only in passing or indirectly through other international instruments or decisions. Treaties which the Court itself has described as international law relevant to a particular case and/or on which it has relied in its reasoning form a majority in this list.
Council of Europe conventions and agreements opened for signature between 1949 and 2003 were published in the European Treaty Series" (ETS No. 001 to 193 included). Since 2004, this Series is continued by the Council of Europe Treaty Series (CETS No. 194 and following). The term “ECHR” (“CEDH” in French) refers to the European Convention on Human Rights.
The Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights, was opened for signature in Rome on 4 November 1950 and came into force in 1953. It was the first instrument to give effect to certain of the rights stated in the Universal Declaration of Human Rights and make them binding.
The importance of the Convention lies not only in the scope of the fundamental rights it protects, but also in the protection mechanism established in Strasbourg to examine alleged violations and ensure compliance by the States with their undertakings under the Convention. Accordingly, in 1959, the European Court of Human Rights was set up.
In the system as first set up, three institutions were given the task of ensuring compliance with the undertakings given by the Contracting States: the European Commission of Human Rights, the European Court of Human Rights and the Committee of Ministers of the Council of Europe. With the entry into force of Protocol No. 11 on 1 November 1998 the first two institutions were merged into a single Court, to which individual or State applications can be directly made alleging violations of the civil and political rights set forth in the Convention.
Since its adoption in 1950 the Convention has been amended a number of times and supplemented with many rights in addition to those set forth in the original text.
Over the last two decades, international human rights instruments, decisions, and dedicated advocates have advanced the understanding of domestic violence. Once considered a private act committed with widespread impunity, domestic violence is now viewed as a human rights violation that states have a responsibility to address. This article will trace the history of this progression and the emergence of a "due diligence" standard to assess a state's response to domestic violence. The first half of the article will examine the recognition of the due diligence standard as a rule of customary international law with increasingly defined state obligations. The second half of the article will analyze the evolution of the due diligence standard within the European Court of Human Rights (ECHR) and the application of the standard in two landmark cases, and both cases held national governments responsible for failing to exercise due diligence to adequately protect individuals from domestic violence. The decisions in these cases not only affirm the use of the due diligence standard as a tool for assessment, but also they begin to clarify the practical obligations of protecting victims from domestic violence as well as preventing, investigating, and prosecuting such violence. In particular, the ECHR highlights the need for enforceable measures of protection and a legislative framework that enables criminal prosecutions of domestic violence in the public interest. Furthermore, the article will analyze the decision in, and the Court's recognition that, a State's obligation to exercise due diligence to protect women against domestic violence is gender-based discrimination, violating women's right to equal protection of the law.