Convention (Article 18)
Selahattin Demirtaş v. Turkey (no. 2) 196 concerned the loss of immunity and prolonged pre-trial detention of an opposition member of parliament (MP) as a result of his political speeches.
The Grand Chamber considered that the applicant’s pre-trial detention had pursued an ulterior motive, that of stifling pluralism and limiting freedom of political debate, in breach of Article 18 in conjunction with Article 5 of the Convention.
Inter-State cases (Article 33)
Slovenia v. Croatia 197 concerned the Court’s jurisdiction to examine an inter-State application alleging a violation of Convention rights of a legal
196. Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, 22 December 2020. See also under Article 35 § 2 (b) (Matter already submitted to another international body), Article 10 (Freedom of expression) and Article 3 of Protocol No. 1 (Right to free elections – Free expression of the opinion of the people) above.
197. Slovenia v. Croatia (dec.) [GC], no. 54155/16, 18 November 2020. See also under Articles 33 and 34 (Applicability – Vicitim status) above.
entity which did not qualify as “non-governmental” for the purposes of Article 34 of the Convention.
The Slovenian Government lodged an inter-State application (Article 33 of the Convention) against the Croatian Government, alleging a series of violations of the Convention rights of Ljubljana Bank, a legal entity nationalised by the Slovenian State after its declaration of independence from the former Yugoslavia and currently controlled by the Succession Fund, a Slovenian government agency. In the decision in Ljubljanska Banka D.D. v. Croatia 198, a Chamber of the Court had already declared inadmissible ratione personae an individual application submitted by the Ljubljana Bank itself: although a separate entity, it was found that it did not enjoy sufficient institutional and operational independence from the State to be regarded as non-governmental for the purposes of Article 34 of the Convention.
In the present inter-State case, the Grand Chamber equally decided that Article 33 does not empower the Court to examine inter-State applications aimed at protecting the rights of entities which cannot be regarded as “non-governmental”. The Court lacked therefore jurisdiction to take cognisance of the application.
This Grand Chamber decision is noteworthy in two respects.
In the first place, it clarified the distinction between “jurisdiction”
and “admissibility” within the meaning of Articles 32 and 35 of the Convention, respectively. Secondly, the Grand Chamber clarified that a Contracting Party may not use the inter-State procedure to protect the interests of a legal entity which itself would not be entitled to lodge an individual application pursuant to Article 34 of the Convention.
(i) Before deciding on whether the present application was compatible with Article 33 of the Convention, the Grand Chamber had to ascertain whether it could examine this question at the admissibility stage of the proceedings. An inter-State application can be rejected as inadmissible pursuant to Article 35 only for a failure to exhaust domestic remedies or to comply with the six-month time-limit: the other admissibility criteria are reserved for the post-admissibility stage to be examined on the merits of the case. Nevertheless, referring to general principles governing the exercise of jurisdiction by international tribunals, the Grand Chamber found that nothing prevented it from establishing, already at the admissibility stage, whether it has any competence at all to deal with the matter laid before it. In other words, the Court could reject an inter-State application without declaring it admissible if it was clear,
198. Ljubljanska Banka D.D. v. Croatia (dec.), no. 29003/07, 12 May 2015.
from the outset, that it was wholly unsubstantiated or otherwise lacked the requirements of a genuine allegation in the sense of Article 33 of the Convention. The Grand Chamber considered that the key question before it – whether the Convention as a human rights treaty could create subjective rights for “governmental” entities – was not an “admissibility”
one since it did not correspond to any of the admissibility criteria set out in Article 35 of the Convention but it was rather a question which went beyond the boundaries of the Convention mechanism and touched upon a general issue of international law. It was therefore a matter pertaining to the Court’s “jurisdiction” within the meaning of Article 32 and, as such, could be adjudicated upon at any stage of the proceedings.
(ii) As to that precise key question, the Grand Chamber found that Article 33 did not allow the Court to examine an inter-State application aimed at protecting the rights of an entity which would not be able to lodge an individual application under Article 34 because it could not be regarded as “non-governmental”. It did so for essentially three reasons.
In the first place, the Grand Chamber applied the general principle according to which the Convention must be read as a whole and construed in such a way as to promote internal consistency between its provisions – including the jurisdictional and procedural provisions such as Articles 33 and 34 of the Convention. This implied that the meaning and scope of “non-governmental organisation” had to be the same for the purposes of both of these provisions. Secondly, the Grand Chamber took into account the specific nature of the Convention as a human rights treaty, universally recognised in international law. It observed that even in an inter-State case, it is always the individual who is directly or indirectly harmed and primarily “injured” by a violation of the Convention. In other words, only individuals, groups of individuals and legal entities which qualified as “non-governmental organisations” could be bearers of rights under the Convention, but not a Contracting State or any legal entity belonging to it. Thirdly, the Grand Chamber drew a logical conclusion from the principle defined in the just satisfaction judgment in Cyprus v.
Turkey 199 according to which any just satisfaction afforded in an inter-State case must always be for the benefit of individual victims and not for the benefit of the State. If therefore the Court found a violation in an inter-State case brought on behalf of a “governmental” organisation, then the eventual beneficiary of any sum awarded under Article 41 would be the applicant State only. In the present case, the Grand Chamber saw no reason to depart from the findings of the Chamber in
199. Cyprus v. Turkey (just satisfaction) [GC], no. 25781/94, ECHR 2014.
the above-cited decision in Ljubljanska Banka D.D., according to which the Bank did not constitute a “non-governmental organisation” for the purposes of Article 34 of the Convention. Consequently, the applicant Government were not entitled to lodge an inter-State application with a view to protecting its interests.