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Claim to be a victim

Content:

Overview

Affected by conduct of a state

Categories of victims

Direct victim

Indirect victim

Potential victim

Measures carried out in secret

Laws influencing the conduct of the applicant or likely to influence it in future

Imminent danger to a right protected under the Convention

Applications pursued by third parties on behalf of the affected person

Applicant dies after submitting the application

Directly affected person dies before submitting an application to the European Court of Human Rights

Disappearances and deaths engaging the responsibility of the state

Cases regarding article 8 ECHR

Cases regarding article 5,6 and 8 ECHR

Cases regarding article 3 ECHR

No actio popularis

No sufficient redress received on a domestic level

Acknowledging the breach

Sufficient redresss

 

 

Overview

 

Article 34 ECHR provides that the applicant has to claim to be a victim of a breach of a right under the Convention. This requirement has two elements:

 

  • The applicant has to be affected by an action or omission by a contracting state
  • The applicant must not have gained sufficient redress yet

 

Affected by conduct of a state

There is no ‘actio popularis’ under the ECHR. Applications by individuals (or groups of individuals) are only admissible if the applicant is able to substantiate that he is affected by the conduct of a contracting state. The Convention does not confer a right to have measures by states examined ‘in abstracto’ in light of their compatibility with the rights and freedoms enshrined in it. Even if a law, judicial decision or other measure taken by the state constitutes an infringement of the ECHR, an application cannot be based on this conduct if it does not affect the applicant. However, in certain circumstances the European Court of Human Rights grants individuals who are not affected by an action or omission themselves to act on behalf of the person who is affected.

 

Categories of victims

Individuals (or groups of individuals) may lodge an application with the European Court of Human Rights if they are affected by an action or omission by a state or one of its agents. The impact of the conduct by the state may take different forms:

 

  • The measure may be directed against an individual and affect this person directly (direct victim)
  • An action or omission which directly affects one individual may also have a strong impact on another person. In this case, the other person may be considered an ‘indirect victim’
  • A person may not be affected yet, but an impact on this individual is imminent, or it may be very likely that a person is affected, but there is no clear proof. In this case, the individuals in question may be regarded as ‘potential victim’ who have standing to submit an application.

 

 

Direct victim

 

The direct victim is the person, organization or groups of persons directly affected by an action or omission (Brumarescu v. Romania). The European Court of Human Rights interprets the term autonomously, i.e. a person or organization may be considered a victim by the Court even if he does not qualify as victim under domestic law. Victim status does not require being prejudiced (Brumarescu v Romania), yet it is not possible to be the victim of an act which does not have any legal effect (Monnat v Switzerland) . In Benamar and others v France, an expulsion order had been issued against the applicant. He was expelled, secretly returned to France and finally was granted a work and residence permit. The expulsion order was, however, never officially revoked. The European Court of Human Rights rejected his application, by which he claimed that the expulsion order violated his rights under article 8 ECHR as inadmissible because the order did not have any legal effect.  Even temporary legal effects on the person concerned may suffice to be regarded as a victim. Temporary legal effects on the applicant may suffice to render him a victim. In Monnat v Switzerland, the applicant was a radio journalist. Following complaints about one of his broadcasts, the official body competent for media regulation had found that the transmission violated media regulation.  While the appeal by the applicant was pending, the broadcast was not available to listeners. The European Court of Human Rights held that this temporary effect was sufficient to consider the applicant as a victim. It also pointed to the negative effects on the applicant’s professional reputation. In order to give full effect to the provisions of the Convention, the ‘victim criteria must not be applied in a rigid and mechanical way (Karner v Austria).

 

 

Indirect  victim

 

Actions or omissions which directly affect someone may also have an effect on third parties. For example, close family members of persons who are illegally detained may suffer from anxiety or grief. Third parties who are impacted by the infringement of another individual’s human rights may in certain circumstances have the right to lodge an application with the European Court of Human Rights on their own behalf as ‘indirect victims’.

 

In general, persons close to the direct victim of a human rights violation will experience a certain degree of suffering, discomfort and worry. This does not automatically justify considering them as indirect victims and give them the right to lodge an application with the European Court of Human Rights. Persons affected indirectly only have standing if their suffering goes beyond what is normal or unavoidable in a case in which a family member is subjected to human rights violations. As the Court has held in Cakici v Turkey, whether close relatives can be considered indirect victims ‘will depend on the existence of special factors which give the suffering of the applicant a dimension and character distinct from the emotional distress which may be considered as inevitably caused to relatives of a victim of a serious human rights violation’ (para 98)

 

It is hard to define clear criteria which set out in which cases these persons shall have standing to submit an application to the European Court of Human Rights on account of the impact the infringement of another person’s right has had on them. The Court has referred to

 

  • The proximity or degree of relationship between direct and indirect victim, giving special importance to the bond between parent and child and husband and wife
  • The interest which the indirect victim has shown in the proceedings related to the violation  the rights of the direct victim
  • The conduct of authorities towards the indirect victim
  • Whether the indirect victim witnessed the human rights violation
  • Whether the legal question concerned is of interest beyond the individual case at hand

 

The Court’s jurisdiction does not always appear fully consistent in this regard, though. In Kurt v Turkey, the applicant and her son had lived in a village which was a PKK stronghold. Turkish security forces had carried out an action to arrest terrorists in this village. The applicant’s son had disappeared in the course of this action; the applicant maintained that she had seen him for the last time when he had been taken in custody. The applicant had approached various authorities to establish the whereabouts of her son, but no actions had been taken. She submitted an application to the European Court of Human Rights on her own behalf and on behalf of her son, in which she claimed inter alia that her rights under article 3 ECHR (prohibition of torture, inhuman and degrading treatment) had been violated. The European Court of Human Rights held that the applicant was an (indirect) victim. It found that the disappearance of her son and the complacency of the Turkish authorities had caused anguish and distress to her which amounted to a violation of article 3 ECHR.

 

By way of contrast, the European Court of Human Rights ruled in Cakici v Turkey, that the applicant was not an indirect victim because his brother had been unlawfully detained and tortured. The applicant’s brother had been arrested by Turkish security forces in the course of an action against terrorists related to the PKK. The applicant had submitted an application on his own behalf as well as on his brother’s behalf. Relying on the aforementioned case Kurt v Turkey, the applicant contended that the anguish and suffering inflicted on him amounted to inhuman and degrading treatment. The European Court of Human Rights rejected this argument. It clarified that there was no general rule that close relatives were to be considered victims of the infringement of their family members’ rights but that special circumstances had to occur.

 

In the more recent case Koch v Germany, the applicant’s wife had been paralyzed from the neck on downwards for more than 10 years. Depending on assistance for every movement and needing ventilation to be able to breathe, she wished to put an end to her life, which she perceived as distressful and undignified. She requested to be provided with substances which would enable her to end her life, but German authorities refused. The applicant had initiated legal proceedings in Germany, too, seeking to obtain a lethal drug enabling him to assist his wife in ending her life. German courts had ruled that he had no standing and rejected his request as inadmissible. The European Court of Human Rights held that he was an indirect victim of a violation of article 8 ECHR (right to private life and family life). It pointed out that the applicant had been a compassionate husband who had accompanied his wife through a long period of suffering. Other criteria the Court applied were the interest, which the applicant had shown in the domestic legal proceedings, the personal interest he had had in the outcome of the domestic proceedings

 

If Convention rights of a legal entity, organization or company are infringed on, members of the board or shareholders are not automatically to be considered as indirect victims. It will be justified only in exceptional circumstances to disregard a company’s legal personality as being the ‘person’ affected by the action or omission in issue, in particular where it is impossible for the company to apply to the Court through the organs set up under its articles of incorporation (G.J. v. Luxemburg). The mere fact that shares depreciate as a consequence of a violation of a company’s rights does not render the shareholders indirect victims of this violation (Agrotexim v. Greece).

 

For example, in Amat G Ltd and Mebagishvili v Georgia, the first applicant was a company which conducted the business of importing fish to Georgia, the second applicant was the director of this company. The company had obtained an enforceable judgment against the Georgian Ministry of Defence, which had failed to pay for deliveries of fish. The judgment was not enforced for more than five years. The European Court of Human Rights granted the application of the company under articles 6 and article 1 of protocol 1 (right to property) ECHR; yet if ruled that the application of the director of the company was inadmissible since he had not been affected and could not claim to be a victim.

 

In Agrotexim v Greece, the applicants were companies which had possessed shares of a Greek brewery. The brewery had planned to build a shopping and office centre on a plot it owned in Athens. The Athens Municipal Court had stayed the preparations and protracted proceedings had commenced; the brewery declared bankruptcy. The applicants submitted applications to the European Court of Human Rights, complaining inter alia about a breach of their right to peaceful enjoyment of possessions. The European Court of Human Rights clarified that the applicants could not be considered indirect victims of a breach of the brewery’s right to property because their shares had lost their value. It also stated that shareholders can only be regarded as indirect victims of a measure directed against a company in exceptional circumstances, for example if it is impossible for the company to act through its organs.

 

While the Court, as a rule, distinguishes between the interest of a company with separate legal identity and the interest of its stakeholders, an exception may apply in cases in which a one person holds all shares of a company and provides the management (Groppera Radio AG and others v Switzerland; Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria).

 

 

Potential victim

As noted above, in general the applicant has to be able to claim that he is affected by an action or omission by the respondent state.  The European Court of Human Rights allows exceptions from this principle in certain cases in order to give full effect to the protection afforded by the Convention. The main categories of cases in which ‘potential victims’ have standing to lodge an application with the Court concern

  • Measures carried out in secret
  • Laws influencing the conduct of the applicant or likely to influence it in future
  • Imminent danger to a right protected under the Convention

Measures carried out in secret

 

This requirement may put the applicant in a difficult position where measures are in question which are usually carried out in secret such as phone interceptions. Since the victim usually does not notice that his phone is tapped, he is unable to proffer proof or to substantiate that he is a victim of a violation. Therefore the European Court of Human Rights sets the threshold regarding the ‘victim’ requirement lower when applications are submitted which concern measures that are usually applied in secret.

 

Therefore, in cases like this the European Court of Human Rights considers it sufficient if the applicants are in some likelihood affected or belong to the category of persons which are prone to be targeted by a certain measure. Otherwise, persons whose rights have been infringed by a secret measure without them noticing would be deprived entirely of the possibility to apply to the European Court of Human Rights and the protection afforded by article 8 ECHR would be nullified.

 

In Klass and others v Germany, the applicants were German prosecutors and judges. They complained that the German law governing phone interceptions by intelligence agencies infringed on their rights to private life and freedom of correspondence under article 8. The German government contested their victim status and stated that the phone calls by the applicants had never been intercepted. The European Court of Human Rights rejected this argument. It stated that German law allowed for the secret interception of phone communications and thus potentially affected all users of phones and therewith also the applicants. It also stated that the mere menace of secret surveillance could be considered to restrict free communication through telecommunication services.

 

In Iordachi v Moldova, the Court scrutinized a complaint brought forward by a number of Moldovan human right lawyers who had frequently represented clients before the European Court of Human Rights. They submitted that the Moldovan law on special investigative measures violated their rights under article 8 ECHR. The European Court of Human Rights pointed out that the law in question provided a basis for the interception of certain categories of persons. As human rights lawyers, the applicants were likely to maintain contacts with persons belonging to this category, so that it could not be ruled out that they were subjected to surveillance of their communication. The Court therefore held that the applicants were victims and ruled that the application was admissible.

 

The case of Weber and Saravia v Germany concerned the (possible) interception of phone calls made from abroad. The applicants were a German journalist and her assistant, both residing in Uruguay. They lodged an application contending that the German ‘G 10’, the law governing phone interceptions by intelligence agencies, violated their right to private life. The European Court of Human Rights ruled that they had victim status because they belonged to the category of persons likely to be subjected to monitoring of their telecommunication (however, the Court ruled that the application was inadmissible for other reasons)

 

 

Laws influencing the conduct of the applicant or likely to affect the applicant in the near future

Applicants can only complain about measures which affect them directly; they cannot have law which they consider to contravene the Convention scrutinized ‘in abstracto’. Yet, where the compatibility of a law with the ECHR is in question, the European Court of Human Rights holds that such applicants have victim status who belong to a category of persons who are likely to be affected by this law and who therefore might change their conduct because of it or who will be affected in the near future.

 

An example of a case in which the European Court of Human Rights considered that the applicant had victim status, because he belonged to the category of persons targeted by a law and was likely to change his conduct was Dudgeon v UK: The applicant was a homosexual male. At the material time, laws incriminating homosexual acts between male adults were in force in Northern Ireland. However, no criminal proceedings had been instituted for such acts for years. In spite of this, the Court held that the applicant had victim status because he had to live in constant fear that he might be prosecuted for homosexual acts at some stage.

 

By the same token, the Court found in Norris v Ireland  that the mere existence of criminal laws impugning homosexual acts amounted to an interference with the right to private life. It reiterated that the possibility of a criminal prosecution, which held the applicant in constant fear, amounted to an interference with his right to private life. Since the Court was unable to see any reasonable justification for this legislation, it found a violation of article 8 ECHR.

 

In Burden v UK, two sisters had lived together in the house they had inherited from their parents for their entire life. According to British tax law, in case one of them was going to die, the surviving sister would have had to pay tax on the share of the house she inherited from the other one. Spouses were exempted from this tax, which amounted in the applicants’ view to discrimination. The Grand Chamber held that considering the age of the applicants it was sufficiently likely they were going to be affected by these regulations in the near future and therefore could be considered victims within the meaning of article 34 ECHR.

 

 

Imminent danger of a human rights violation

The European Court of Human Rights has also granted exceptions from the general principle that the applicant has to be affected by a measure in cases in which such an affect has not materialized yet but will in the near future. This regards mainly cases of extradition or expulsion. In Soering v UK, the applicant was a suspect in a homicide case which had taken place in the USA. The USA had requested his extradition from the UK, where he had been detained. The applicant argued that he was facing the death penalty and being put on death row in the USA, which would amount to a violation of article 3 ECHR. The Court held that an imminent danger of an infringement may in principle engage the responsibility of the state.

 

 

 

Applications pursued by third parties on behalf of the affected person

In certain circumstances, also persons against whom the measure taken by the state was not directed may have standing before the Court. In this context, two constellations have to be distinguished:

 

  • If the applicant dies after submitting the application to the European Court of Human Rights, the Court grants next-of-kin under certain circumstances the right to pursue the application
  • If a person affected by a (potential) breach of Convention rights dies before he has the opportunity to lodge an application with the European Court of Human Rights, it depends on the violated rights whether third parties may take the case to the European Court of Human Rights

 

 

Applicant dies after submitting the application

 

If the applicant dies after submitting the application to the European Court of Human Rights, the Court usually grants next-of-kin or other family members the opportunity to pursue the application, provided they have a sufficient interest in the case (Micaleff v Malta), because cases pending with the Court have a moral dimension and family members may have a legitimate interest in seeing justice done even after the applicant has died. The legitimate interest may inter alia stem from a pecuniary interest in the outcome of the proceedings (Mijanovic v Croatia) or from a moral interest to see justice being done (Dalban v. Romania). For example, in Craxi v Italy, telephone calls by former Italian Prime Minister Craxi had been intercepted and their content had been leaked to the press. Mr Craxi submitted an application complaining about a violation of this right to private life and correspondence under article 8 ECHR. He died after submitting the application, but the Court granted his son and wife the opportunity to pursue the application since they had a justified interest in a ruling by the European Court of Human Rights.

 

The right of family members to pursue the application does not necessarily depend on the proximity of the relationship. While the Court allows in most cases next-of-kin to continue litigation before the Court, it may also give this opportunity to other family members if they have a specific interest in doing so. For example, in Malhous v Czech Republic, the nephew of the applicant was allowed to pursue the case after the applicant’s death, because he claimed to be the heir of the applicant’s estate in domestic proceedings (which were still pending at the time) and the applicant’s children had not contested the will.

 

If family members wish to pursue the case after the applicant has died, they generally inform the Court in writing about the applicant’s death, state that they wish to continue  litigating instead of the applicant case and set out the reasons for their legitimate interest in doing so. This usually does not give rise to much debate or trigger objections. There are exceptions, though. In Mijanovic v Montenegro, the applicant had complained about the non-enforcement of judgments he had obtained. He died while the case was pending before the European Court of Human Rights and his wife and two daughters stated that they wished to pursue the application. The Government objected.  The Court stated that the applicant’s wife and daughters were his legal heirs and that in particular one daughter, who had inherited the claim in question, had a pecuniary interest in the outcome of the case. It therefore granted the daughter the right to pursue the application.

 

In case the applicant dies before proceedings before the European Court of Human Rights are terminated and no heir expresses an interest in pursuing the case further, the Court usually does not proceed and the case is struck out of the list. There are, however, cases in which the Court decides to proceed with the case in the interest of human rights. For example, in Karner v Austria, the applicant complained that certain benefits which were foreseen for spouses in Austrian housing law did not apply to persons living in a homosexual relationship. The applicant died in the course of the proceedings. The Court pointed out that the moral dimension of cases pending before it should be considered when deciding whether to strike a case out of the list. It stated that the case gave the Court the opportunity to elaborate on important principles of human rights protection and should therefore be continued.

 

 

Directly affected person dies before submitting an application to the European Court of Human Rights

 

Cases in which the applicant perishes after submitting an application to the European Court of Human Rights have to be distinguished from cases in which a person is affected by a violation of Convention rights, but dies before he has the possibility to lodge an application with the Court. In the latter constellation, it depends on the (possibly) violated right whether close relatives may take the case to the European Court of Human Rights on behalf of the deceased person. Decisions by the Court in this regard are hard to predict, i.e. it is not easy to assess whether applications by relatives of persons who have suffered a violation of their Convention rights bear prospects of success. It appears that an important aspect is the question whether the right which has been breached is strictly personal or to what extent the infringement also had an impact on other persons, in particular the applicant.

 

Disappearances and deaths engaging the responsibility of the state

If a person dies or disappears and there is reason to believe that the responsibility of the state is engaged, the European Court of Human Rights considers that next-of-kin have standing to submit an application. In Bazorkinova v Russia, for example, the son of the applicant had disappeared after being detained by member of Russian forces in Chechnya. The Court had no doubts that the applicant had standing to lodge an application regarding the disappearance of her son.

 

Cases regarding article 8 (right to private life, autonomy)

In cases regarding the right to private life and personal autonomy, the Court has held that next of kin do not have standing to lodge application with the European Court of Human Rights on behalf of their late relatives. In Sanles Sanles v Spain, the applicant was the sister in law of a person who had been paralyzed and who had sought to obtain assistance in ending his life from the authorities. He had committed suicide and appointed his sister in law to pursue the claim further. She submitted an application to the European Court of Human Rights. The Court ruled that she could not claim to be a victim of a right under the Convention. It stated the aspect of the right to private life she based her application on (the right to autonomy), was strictly personal and could therefore only be invoked by the affected person himself.

 

Cases regarding articles 5, 6 and 8

In cases regarding articles 5, 6 and 8 ECHR, the European Court of Human Rights has granted close relatives or spouses the possibility to lodge applications if their own reputation was affected in some way or where they have shown a moral interest in the matter. For example, in Nölkenbockhoff v Germany, the husband of the applicant had been convicted in a criminal procedure. He had died his appeal pending. In a decision on the cost of the proceedings, a German court had stated that the applicant’s husband would almost certainly have been convicted. The applicant submitted an application alleging a breach of the presumption of innocence (article 6 ECHR). The European Court of Human Rights rejected the German government’s argument that she could not be considered a victim, stating that the applicant had a moral interest in her late husband being exonerated form a finding of guilt.

 

By the same token, in Gradinar v Moldova, the applicant’s husband had been convicted of a criminal offence. He died pending a retrial. The Court held that the applicant had standing to submit an application due to her moral interest in the outcome of the case.

Also, the Court has in some cases in which the direct victim had deceased before submitting an application assumed that relatives may have standing to introduce an application where general interests have been at stake in addition to individual interests (Nassau Verzekering Matschaapij v The Netherlands), particularly in cases in which rights under article 6 ECHR were concerned. For example, in Micallef v Malta, the sister in law of the applicant had been involved in civil litigation. The judge had changed the date of a hearing without informing her so that she had been unable to attend. She perished while pursuing domestic remedies. Her brother in law seized the European Court of Human Rights claiming that she had indicated in her life time she was planning to do so. The Court pointed to his discretion when according victim status. It referred to its prior judicature to the effect that close relatives could have standing to submit an application where a general interest was at stake. Stating that the application concerned an important aspect of the Maltese legal framework, the Court held that the applicant had standing (para 46 – 50)

 

Cases regarding the prohibition of torture (article 3 ECHR)

With regard to the prohibition of torture, the European Court of Human Rights has held that article 3 contains a strictly personal right connected to an assault on and the suffering of an individual. It is therefore, as a general rule not transferable and cannot be pursued by others. In Kaburov v Bulgaria, there was a suspicion that the applicant’s father had been ill-treated by police. He had tried to obtain compensation on the domestic level. While proceedings were still pending, he died and the applicant had pursued the claim further. After the claim had been rejected, the applicant had submitted an application to the European Court of Human Rights. The Court rejected the application as inadmissible, since the applicant could not claim to be a victim due to the personal nature of the right infringed. However, it pointed out that there might be cases in which relatives of torture victims might have standing to submit an application if they were able to show a strong moral interest in the outcome of the case (para 56).

 

 

No ‘actio popularis’

 

As pointed out, there is no ‘actio popularis’ under the ECHR (Burden v. UK, para 33). A scrutiny of laws by the European Court of Human Rights ‘in abstracto’ is not foreseen in the Convention (The Christian Federation of Jehova’s Witnesses in France v France). Applicants cannot have a law or regulation examined by the Court just because they deem it contravenes the Convention; they have to be personally affected (Tanase v. Moldova)

 

When laws or legal acts are concerned, establishing whether an applicant is affected in a way which gives him standing to lodge and application is not easy. In particular, it may prove difficult to discern between cases in which the applicant is considered a potential victim of a legal act (see above under #) and an application seeking an abstract examination of a law. The main criterion is whether the law is likely to affect him immediately or on the near future. In Ligue des Musulmans de Suisse et autres c Suisse, the applicants were Muslims who belonged to organizations advocating for reconciliation between Islam and other religions. They took issue with the result of a referendum in which a majority of the Swiss population had voted that the building of minarets should be prohibited in Switzerland. The ban on building minarets was not effective yet. The European Court of Human Rights declared the application inadmissible for the applicant could not claim to be a victim. It held that the result of the popular vote did not have an impact on the applicants yet and did not compel them to modify their behavior in any way.

 

It is not sufficient that the applicant is affected in the way that a law or measure applies to him in the sense that he is a citizen of a certain country in which a legal act is passed or a member of the general public. For example, in L.Z. v Slovakia, the applicant complained about the naming of a street after a man who, according to him, had been a Nazi collaborator during the Second World War. The European Court of Human Rights acknowledged that the issue raised by the applicant was important. It noted, however, that the applicant had not presented any evidence that the renaming of the street had had a negative impact on his private life (para 75). Therefore it declared the application inadmissible.

 

 

No sufficient redress received on domestic level

In addition to being affected, victim status also requires that the applicant has not received sufficient redress on a domestic level yet. It is a general principle of international law that states first be given the opportunity to set matters straight at their own level in case of alleged human rights violations before international supervisory mechanisms set in (Tanase v. Romania).  If they provide remedy, there is no room and no necessity for an intervention or ruling at the international plane anymore. Accordingly, applications to the European Court of Human Rights are only admissible if the respondent state has not provided sufficient redress yet.

 

Not every domestic decision or ruling in favor is apt to deprive the applicant of his victim status (Gafgen v. Germany). In order to do so, it has to meet two requirements:

 

  • It has to acknowledge expressly or in substance a breach of the applicant’s right(s)
  • It has to provide sufficient redress

 

acknowledging the breach

Acknowledging that there has been a breach of the applicant’s rights may be express or in substance. This may for example in form of a judgment stating that there has been a violation. E.g., in Gafgen v Germany, a police officer had threatened the applicant, who had kidnapped a child, to torture him to obtain information. In the criminal proceedings against the applicant for kidnapping the child, the competent Court had expressly stated that this had been a prohibited method of interrogation. In addition to this, the police officer had been convicted to a fine. The European Court of Human Rights was satisfied that the breach of the applicants rights had been acknowledged (it found, however, that no sufficient redress had been provided, see below). By way of contrast, in Dalban v Romania, the Grand Chamber of the European Court of Human Rights found that there had been no acknowledgement of a breach of the applicant’s rights capable of depriving him of his victim status. The case concerned a Romanian journalist who had been convicted for libel because of allegations he had leveled against two public officials. While an appeal to the Supreme Court was pending, the applicant died and the Supreme Court decided to discontinue the proceedings because of the applicant’s death. The European Court of Human Rights pointed out that the judgment by the Supreme Court had, while not upholding the applicant’s conviction, had not acknowledged that his rights had been infringed upon, because it was only based on the applicant’s death. Therefore it held that the applicant was still to be considered a victim for purposes of article 34 ECHR.

 

sufficient redress

In addition to acknowledging the infringements of the applicant’s rights the domestic measure or decision has to provide sufficient redress to be able to deprive the applicant of the ‘victim status’. Which kind of redress is sufficient has to be assessed on a case by case basis considering all circumstances of the case. The awarding of compensation to the victim and the amount granted are important factors when assessing whether redress is sufficient for the applicant to deprive him of his victim status. If the amount is considerably lower than usually awarded by the European Court of Human Rights in similar cases, this is an argument to uphold the victim status. For example, in Ciorap v Moldova (no.2), the applicant had been held in detention in conditions which were degrading and contravened international standards as well as Moldovan law. Moldovan courts acknowledged this and awarded compensation in an amount equivalent to 600 Euros.  The European Court of Human Rights pointed out that it had awarded compensation in the amount of 6.000 Euros for ten days of detention in inhuman conditions in the case Gavrilovici v Moldova. Since the amount granted to the applicant was so much lower, the Court held that he had not lost his victim status.

 

There are exceptions to this rule, though. In particular, in case of overly long proceedings, amounts awarded as compensation may still be regarded as sufficient redress if they are lower than the sums granted by the European Court of Human Rights, provided that they are not unreasonable. This holds particularly true in states which have opted for domestic remedies which are designed to expedite the proceedings and to afford compensation (Vidakovic v Serbia)

 

If the applicant’s rights under article 3 (prohibition of torture) have been infringed upon, sufficient redress requires

 

  • that an effective investigation have been carried out , which should be able to lead to the identification and punishment of those responsible
  • that the victim have received adequate compensation or at least has the chance to obtain compensation.

 

When assessing whether the investigation has been effective, the European Court considers its promptness and its expedition. The obligation to carry out an effective investigation is an obligation of means, not of results. The mere fact that the investigation has not led to the identification of the person responsible for the ill-treatment does not necessarily render it ineffective, yet the actions undertaken must in principle be appropriate to identify the person(s) accountable for the ill-treatment.  However, where the person responsible has been identified, sanctions must be imposed which reflect the gravity of the offence. This will in general imply criminal and disciplinary sanctions.

 

In the aforementioned case Gafgen v Germany (in which a police officer had threatened a suspect to torture him), the responsible police officer had been convicted and sentenced to a suspended fine. The European Court did not consider this a redress sufficient to deprive the applicant of his victim status.

 

 

 

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