ro fr
universul juridic magazin

About the unilateral statement of the concerned state and its effects in the case law of the European Court of Human Rights

1. The specificity of the mechanism for the control of the way in which contracting states fulfill their obligation in the European Convention on Human Rights to observe the rights and liberties it guaranties lies in the individual recourse that may be lodged with the European Court of Human Rights in Strasbourg by any natural or legal person, other than a governmental organization, claiming to be the victim of at least one violation of these rights and liberties by the authorities of the respective state. This individual recourse materializes in a „writ of summons” submitted before the European Court of Human Rights in contentious matters. Such petition must fulfill certain admissibility conditions stipulated in art. 35 of the Convention. If the Court finds that these conditions have been fulfilled and, as a consequence, declares the petition as admissible, it shall proceed to the examination of the merits; if pursuant to such examination the Court finds the existence of an alleged violation of a right guaranteed under the Convention, it shall pass a decision to this end, through which, pursuant art. 41 of the Convention, it „convicts” the defendant state to remove, by specific means, the consequences of such violation for the claimant, and, if applicable, to pay to the latter an amount of money under the form of the so-called equitablesatisfaction. Through art. 46 of the Convention the contracting parties have undertaken the obligation to enforce these decisions of the European court. 2. At the same time, one of the peculiarities of the European system for the protection of human rights is that the dispute between the claimant and the „defendant” state may be extinguished through amicable settlement, subject to the provisions in art. 39 of the Convention. The amicable settlement of the dispute must reflect the observance of human rights, as guaranteed by the Convention; it is carried out under the control of the Court, and the relevant procedure is confidential. If this procedure ends with the consent of the parties, the Court may remove the case from its case list through a decision submitted with the Committee of Ministers of the Council of Europe who will oversee the enforcement of the clauses comprised in the consent of the parties.The amicable settlement of the dispute is beneficial for both the parties, and the European court. In fact, the claimant obtains satisfaction in terms of its claims, as, on the one hand, the state will acknowledge the existence of the violation of the Convention invoked through the petition, and, on the other hand, the claimant will always receive a monetary compensation for the remedy of the material and/or moral prejudice incurred pursuant to such infringement; in its turn, the respective state will no longer be internationally convicted. In so far as the European court is concerned, it shall pass a much easier decision, without a detailed analysis of the factual and legal situation in the respective case. 3. In the application of the Convention provisions concerning the amicable settlement of the dispute, at the beginning of 2000, the Court has been faced with an inedited situation. Thus, in a case in which the claimant, through its petition, invoked the fact that his son had been illegally murdered by the security forces of the respective state, after the failure of the negotiations towards the amicable settlement of the dispute, the „defendant” state government has submitted with the European court a „statement” that had as a purpose the „settlement of the matters raised in the case”, so that it requested, pursuant to the provisions in art. 37 para 1 lett. c) of the Convention, the removal thereof from the case list. Through the „statement” the „defendant” state’s government essentially: a) regretted the occurrence of „individual situations” involving the murdering of persons through the excessive and disproportional use of force by its repression bodies; b) admitted that that was an infringement of the provisions in art. 2 of the Convention, which guarantees the right to life to each individual, so that it undertook to take all measures meant to defend this right, and if, however, such an event did occur, „to carry out an actual investigation” as to the way in which it took place; c) it stated it was willing to pay to the claimant ex gratia a substantial amount – GBP 85,000 – as damages and court expenses; d) it showed that it believes that the overseeing of the enforcement of decisions passed in similar cases by the Committee of Ministers of the Council of Europe represents an adequate mechanism for the continuous improvement of the settlement of similar cases. Thus, the notion of unilateral statement of the respective state, which, even though it is an „offer” of amicable settlement of the dispute, exceeds the confidential framework of the „negotiations” between the parties has been introduced in the European contentious human rights court case law; the Court has found that the letter had become public, thus exceeding the framework of the negotiations held between the parties, but it did proceed to the examination of the content thereof. Pursuant to the „close scrutiny”, the Court has found that the „statement” comprises acknowledgements of the violations of rights guaranteed under the Convention, invoked by the claimant through its petition, direct commitments undertaken by the government in order to remove the situations leading to the occurrence of the respective violations, and the obligation undertaken by the government to pay to the claimant important damages meant to cover the material and moral prejudice incurred by it; hence, the European court has found that there are sufficient reasons justifying the cessation of the petition scrutiny, and has decided to remove it from the case list. The Court has subsequently adopted the same solution in other cases where the government submitted unilateral statements with a similar content. 4. Starting from the above, this study analyzes the conditions under which a unilateral statement of the government meant to lead to the removal of the case from the case list may be taken into account, as such conditions have been determined by the Great Chamber of the Court, the evolution of its jurisprudence in the field, the critical position of the specialized literature concerning the use by the Court of the unilateral statements as a way to „settle” individual statements, the position of the Committee of Ministers of the Council of Europe concerning the unilateral statement. The study highlights the fact that, unlike the amicable settlement of the dispute, the settlement thereof based on the unilateral statement of the respective state’s government is not mentioned in the Convention, and, for a long time, it has not been present in the Regulation of the Court. The „step by step” jurisprudence development of the unilateral statement procedure has, however, led to the inclusion thereof, based on the decision of the Administrative Plenary Meeting of the Court judges of April 12, 2012 as such in art. 62 A of the Court Regulation, the provisions of this text being analyzed. 5. Even though it is shown that the unilateral statement of the government of the case against whom the claimant lodges an individual petition before the European court raises many question marks, the conclusion of the study is that the consideration thereof by the European jurisdiction does not lead to the binding of the liability of the state for the infringement of the rights guaranteed under the Convention; furthermore, without the acknowledgement of the respective violation, without the formulation of individual, and, if required, general remedy measures, and without the obligation undertaken by the respective state to adequately compensate the claimant, the Court will never accept for a unilateral decision to lead to the extinction of the dispute. Moreover, the Court may always disregard such a statement and proceed, pursuant to the provisions in art. 37 para 1 final part of the Convention, to the continuation of the petition scrutiny, if imposed by the need to ensure the observance of human rights guaranteed by the Convention.