Abuse of the right to an individual application under Article 35 (3) (a) of the European Convention on Human Rights
Lessons for future litigants
Last year, the European Court of Human Rights had to take an unusual procedural step in relation to a case that had been brought forward against Finland in 2018 and that had actually already been decided in 2019. In the 2019 decision in N. A. v. Finland, the European Court of Human Rights had found Finland at fault for violating Articles 2 and 3 of the European Convention on Human Rights (ECHR) with regard to the applicant’s father. Article 2 ECHR protects the right to life and Article 3 ECHR outlaws torture as well as “inhuman or degrading treatment or punishment”. The European Court of Human Rights found in 2019 that Finland had violated these rights of the applicant’s father by sending him back to his native country, Iraq, after he had unsuccessfully applied for asylum in Finland, exhausting all domestic remedies and having his case rejected by the Finnish Supreme Court. The applicant’s father had been killed in Iraq shortly after he had been sent back - a least that was what the applicant had claimed in proceedings in Finland and at the European Court of Human Rights. In 2020 it emerged that the applicant’s father was actually alive and an investigation into potential fraud was initiated. The Finnish government requested the European Court of Human Rights to revise the case based on Rule 80 of the Rules of Court. Rule 80, entitled “Request for revision of a judgment”, reads as follows:
“1. A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court, within a period of six months after that party acquired knowledge of the fact, to revise that judgment.
2. The request shall mention the judgment of which revision is requested and shall contain the information necessary to show that the conditions laid down in paragraph 1 of this Rule have been complied with. It shall be accompanied by a copy of all supporting documents. The request and supporting documents shall be filed with the Registry.
3. The original Chamber may decide of its own motion to refuse the request on the ground that there is no reason to warrant considering it. Where it is not possible to constitute the original Chamber, the President of the Court shall complete or compose the Chamber by drawing lots.
4. If the Chamber does not refuse the request, the Registrar shall communicate it to the other party or parties and shall invite them to submit any written comments within a time-limit laid down by the President of the Chamber. The President of the Chamber shall also fix the date of the hearing should the Chamber decide to hold one. The Chamber shall decide by means of a judgment.”
Submitting an individual application to the European Court of Human Rights is, in itself, a right that is protected by the Convention. As such, it is covered by the prohibition of the abuse of rights, as defined in Article 17 ECHR. Intentionally misleading the Court about the facts of the case is such an abuse of the right to an individual application.
But the case also shows a shortcoming of the Court’s HUDOC database that should be corrected. If one were to read only the 2019 judgment one would never know about the 2021 judgment with which the earlier judgment has been revised. In fact, both judgments are marked with the word “FINAL” in large font, red colour and all caps and include a statement that “This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.” The revision that the European Court of Human Rights has undertaken in 2021 might appear to be more than a mere “editorial revision”, but the term revision explicitly refers to the process under Rule 80 that was applied to the case of N. A. v. Finland. The Court learned that the very facts on which its 2019 judgment had been based had been falsely presented. Accordingly, the Court had no choice but to revise the judgment. A reader of the 2019 judgment will not know this if one relies too much on the commonly used meaning of the term “editorial” in the phrase “editorial revision”. A simple correction of a typing error or similar obvious mistake does not require the procedure outlined under Rule 80 but can be undertaken directly by the Court under Rule 81. Unlike Rule 80, Rule 81 does not require a new judgment. HUDOC users are, therefore, in theory, warned that a revision within the meaning of Rule 80 is possible. Fortunately, there is a very simple way to find out whether such an exceptional circumstance is relevant for any given document produced by the Court. In the judgment as seen in the database of the European Court of Human Rights, HUDOC, specifically, in the HTML version of the document, the application number is often displayed in the form of a hyperlink. Clicking on this link will bring the HUDOC user to a list of all documents related to this case. This link is not available for all cases, in particular older cases, for example, many cases decided by the former European Commission of Human Rights that was operative until 1998, might not include this link. In this case, one can simply enter the application number into the HUDOC search field. Lawyers who are relying on the case law of the European Court of Human Rights would be well advised to invest a few seconds in one additional click, on the off chance that the case they rely on has later been revised, as has been the case with N. A. v. Finland. Most likely, this will not be the case, but even this small risk of relying on a false precedent can be avoided.
While the European Court of Human Rights does not have as extensive a doctrine of precedent as readers from Common Law countries might be used to, judicial decisions are important tools for the interpretation of international law, as is indicated by Article 38 (1) (d) of the Statute of the International Court of Justice which reflects customary international law. Precedent plays a large practical role in the European Court of Human Rights work. While the changed facts of a single case do not alter the law, and the legal considerations remain correct in abstract terms, although they do not apply to the specific facts of that case anymore, the value of the 2019 judgment in N. A. v. Finland as precedent is diminished.
N. A. v. Finland contains another piece of information that potential future litigants might find useful: the case is anonymized because the Court, in this case, the President of the relevant Section, granted the applicant’s request. This is a common practice and can be highly useful when it is necessary to ensure the security of the applicant. Once granted, this is not revoked - not even when the right to apply has been abused. In other words, there is no shaming of an applicant. Even if the Court finds that there has been an abuse of the right to an individual application, the Court will continue to protect the applicant’s anonymity.
N. A. v. Finland does not provide much in terms of new legal information, but it is a reminder that not even the ECHR is immune to abuse. Submitting an individual application to the European Court of Human Rights is a right in itself, a right with which states must not interfere. Indeed, the positive dimension of this right can require the state to make legal aid available, although legal aid can be made available by the Court itself, as is outlined in detail in Chapter XII of the Rules of Court. It is also possible for intervenors to obtain legal aid if a case would affect them, for example if a civil suit between two private parties leads, after the exhaustion of all domestic remedies, to an application by one of the parties. As this would be the party that had lost in the highest national court, the decision by the European Court of Human Rights would effectively be perceived as a hyper-appeal that impacts the other party to the national proceedings as well. As this other party would not be a party to the proceedings before the European Court of Human Rights, that party has the possibility to intervene in the case in Strasbourg. The European Court of Human Rights is not an appeals court because it only applies the Convention, including the Protocols thereto, but does not make decisions based on national law. This important distinction is often overlooked by applicants. Such a mistake, however, would not necessarily lead to the Court seeing an application as abusive within the meaning discussed in this text. Applications to the European Court of Human Rights are possible without the applicant being represented by an attorney. In order to reduce the risk of applicants submitting applications that are obviously inadmissible, the Court now requires the use of the application form that is provided on the website of the Court in multiple languages.
About the author
Prof. Dr. Stefan Kirchner is working at the intersection of international environmental law, human rights, and the law of the sea. In addition to practising law, he has taught international law at universities in Germany, Finland, Italy, Lithuania, Ukraine, and Greenland. His most recent books include “Security and Technology in Arctic Governance” (ed., 2022), “Governing the Crisis: Law, Human Rights and COVID-19” (ed., 2021), “El Ártico y su gente - Ensayos de derecho internacional” (2020), and “The Baltic Sea and the Law of the Sea - Finnish Perspectives” (with T. Koivurova, H. Ringbom and P. Kleemola-Juntunen, 2019). This text only reflects his personal opinion.