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Individual Applications Under the European convention on Human Rights and the Concept of Administrative Practice: The Donnelly Case

Published online by Cambridge University Press:  28 March 2017

Kevin Boyle  and
Hurst Hannum
Kevin Boyle
Affiliation:
Queen's University of BelfastNorthern Ireland
Hurst Hannum
Affiliation:
California Bar
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Extract

The most distinctive feature of the European Convention on Human Rights is the optional procedure under Article 25, whereby an individual claiming to be a victim of a violation of one of the rights guaranteed by the Convention may present a complaint against his own (or another) government to the European Commission of Human Rights for investigation. Thus the individual is given direct access to an international tribunal and is recognized as having the standing necessary to pursue his rights under international law.

Type
Research Article
Information
American Journal of International Law , Volume 68 , Issue 3 , July 1974 , pp. 440 - 453
Copyright
Copyright © American Society of International Law 1974

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References

1 For a general treatment, see Monconduit, F., La Commission Européenne des Droit de L’Homme (1956)Google Scholar. For commentary see Fawcett, J.E.S., The Application of the European Convention on Human Rights 276–88 (1969)Google Scholar.

2 Applications Nos. 5577/72–5533/72, 43 Collection of Decisions 122 (1973) (decision on admissibility of April 5, 1973) (hereinafter cited as Coll. Dec ) .

3 See infra, Sections IV, V.

4 Application No. 5095/71, Kjeldsen v. Denmark, 43 Coll. Dec. 44 (1973) (decision on admissibility of Dec. 16, 1972).

5 Art. 28.

6 Art. 31(1).

7 Arts. 31(2), 32.

8 Arts. 32, 47, 48.

9 Arts. 45, 52.

10 Arts. 52, 54.

11 Cf. the Lawless Case, 3 Yearbook of the European Convention on Human Rights 474 (1960), (hereinafter Yearbook).

12 “Stock-Taking on the European Convention on Human Rights,” Council of Europe Publication DH(73)3, at 54, 57 (March 1973).

13 Applications Nos. 176/56 and 299/57, Greece v. the United Kingdom, 2 Yearbook 182, 186 (1959); Application No. 788/60, Austria v. Italy, 4 Yearbook 116 (1961); Applications Nos. 3321, 2233, 3323, 3344/67, Denmark et al v. Greece, 12 Yearbook (1969); Applications Nos. 5310/71 and 5451/72, Ireland,v. the United Kingdom, 41 Coll. Dec. 3 (1972).

14 For discussion of the application process under Article 25, see the Commission’s own publication, Case-Law Topics, 3, “Bringing an Application before the European Commission of Human Rights” (1972); and Danelius, , Conditions of Admissibility in the Jurisprudence of the European Commission of Human Rights, 2 Rev. Des Droits de l’Homme 284 (1969)Google Scholar.

15 Art. 25: “(1) The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right. . . .”

16 This approach may be contrasted, for example, to that of the United Nations Sub-Commission for the Prevention of Discrimination and Protection of Minorities, whose rules allow the admission of complaints regarding a “consistent pattern of gross and reliably attested violations of human rights” brought by any individual or group which may have “direct and reliable knowledge” of the alleged violations, even though the complainants might not themselves be victims of the practices outlined in the communication. Res. 1(XXIV), para 2, of the Sub-Commission on Prevention of Discrimination and Protection of Minorities.

17 Application No. 4185/69, 35 Coll. Dec. 140 (1970); Application No. 1478/62, 6 Yearbook 590, 616 (1963); Fawcett, supra note 1, at 232–36.

18 Cf. Kjeldsen v. Denmark, supra note 4.

19 Art. 26: “The Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

20 Fawcett, supra note 1, at 288–309; Section V, infra.

21 (1) The Commission shall not deal with any petition submitted under Article 25 which:

(a) is anonymous, or

(b) is substantially the same as a matter which has already been examined by the Commission or has already been submitted to another procedure of international investigation or settlement and if it contains no relevant new information.

(2) The Commission shall consider inadmissible any petition submitted under Article 25 which it considers incompatible with the provisions of the present Convention, manifestly ill-founded, or an abuse of the right of petition.

(3) The Commission shall reject any petition referred to it which it considers inadmissible under Article 26.

22 See unpublished applications cited in Case-Law Topics, supra note 14, at 10, note 4.

23 Generally by alleging facts which, even if proved, would not violate the guarantees of the Convention; see Application No. 3039/67, 10 Yearbook 506 (1967).

24 Cf. Application No. 5207/71, 42 Coll. Dec. 85 (1972); Application No. 3934/69, 28, Coll. Dec. 26, 41 (1969); Application No. 2625/65, 23 Coll. Dec. 29 (1967).

25 Cf. Application No. 3806/68, 11 Yearbook 609 (1968); and Section V, infra.

26 Art. 17: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

Cf. the Lawless Case, supra note 11. Application No. 214/56, De Becker v. Belgium 2 Yearbook 215 (1958); Application No. 250/57 (the German Communist Party case), 1 Yearbook 222 (1957).

27 Report of the Inquiry into Allegations against the Security Forces of Physical Brutality in Northern Ireland (Compton Report), Cmnd. 4823, at para. 105 (1971).

28 Report of the Committee of Privy Councillors Appointed to Consider Authorized Procedures for the Interrogation of Persons Suspected of Terrorism (Parker Report), Cmnd. 4901 (1972).

29 Gerard Bradley, Edward Duffy, John Carlin, Francis McBride, Anthony Kelly, and Thomas Kearns.

30 Art. 3: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

31 Donnelly case, supra note 2, at 125.

32 Ibid.

33 In its Report on the Greek Case, the Commission defined an “administrative practice” as consisting of a repetition of acts in conjunction with official tolerance of practices which are incompatible with the guarantees of the Convention. Such a practice could clearly exist in the absence of any legislation directing or approving the activities as well as in the face of contrary legislation which theoretically outlaws the practices complained of. Denmark et al. v. Greece, supra note 13, at 194–96.

34 The arguments of both parties are summarized in the Commission’s decision, supra note 2, at 128–32.

35 Cf. Application No. 5470/72, 42 Coll. Dec. 110 (1972); Application No. 867/70, 4 Yearbook 270 (1961); Application No. 290/57, 3 Yearbook 215 (1960).

36 Art. 24. These arguments were also considered in the interstate case concerning Northern Ireland filed by the Irish Government against the United Kingdom. See supra note 13.

37 Supra note 4, and cf. Application No. 290/57, 3 Yearbook 214, 220 (1960).

38 Donnelly case, supra note 2, at 146.

39 Art. 27(3).

40 Interhandel Case (Switzerland v. the United States), ICJ Reports 1959.

41 Cf. Austria v. Italy, supra note 13, at 116 (decision on admissibility of January 11, 1961).

42 Interhandel Case, supra note 40, at 25.

43 Austria v. Italy, supra note 13, at 142–52.

44 Application No. 299/57, Greece v. the United Kingdom (Second Cyprus Case), 2 Yearbook 186 at 192–94 (1958–59) (decision on admissibility of October 12, 1957).

45 Application No. 176/56, Greece v. the United Kingdom (First Cyprus Case), 2 Yearbook 182 at 184 (1958–59) (decision on admissibility of June 2, 1956).

46 The Greek Case, Report of the Commission, 12 Yearbook 194 (1969).

47 Cf. decisions on admissibility in Ireland v. the United Kingdom, supra note 13; Applications Nos. 3321, 3322, 3323, 3344/67 (The Second Greek Case), 11 Yearbook 690 (1968); First Cyprus Case, supra note 45.

48 But see the Kjeldsen case, supra note 4, and discussion supra, pp. 446–47.

49 4 Yearbook 150 (1961).

50 “The Commission observes . . . that the applicant Government have argued . . . that where breaches of treaty are alleged, the rule of exhaustion of remedies does not apply. Nevertheless, the Commission finds that it is required by Art. 27(3) of the Convention to apply the rule as set out in Art. 26 to any application whether brought under Art. 24 and Art. 25.” 41 COLL. DEC. 85 (1973).

51 No derogation from Article 3 is permitted under Article 15(2).

52 Cf. Section IV, supra.

53 Donnelly case, supra note 2, at 147.

54 Id ., 148.

55 Ireland v. the United Kingdom (in relation to Article 2) supra note 13; the second Greek Case (in relation to Article 3, although allegations were subsequently admitted because domestic remedies were found to be ineffective) supra note 47.

56 In addition to allegations of an administrative practice contrary to Article 3, Irish Government allegations concerning detention without trial (Art. 5) and discrimination (Art. 14) were also admitted by the Commission in its October 1972 decision. Supra note 13.

57 Donnelly case, supra note 2, at 148–49.

58 2d., 148.

59 Id., 149.

60 A recent volume of the Commission’s Collection of Decisions, for example, includes no less than three applications which were dismissed on the grounds that they constituted an abuse of the right of petition. Applications Nos. 5070, 5171, 5186, 42 COLL. DEC. 58 (1973); 5207/71, Id., 85; and 5217/71, Id., 139.