An overview of the appeal procedure before the Grand Chamber against judgments of the European Court of Human Rights.
Article 43 of the European Convention on Human Rights:
“1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.
2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance.
3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.”
These conditions should be applied “in a strict sense”, which suggests that, in principle, a request for referral should be granted only when the case is, at least in some respects, exceptional. This interpretation is confirmed by the first paragraph of Article 43 of the Convention, which provides that “any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber”.
I. TIME-LIMIT
Following the delivery of a Chamber judgment, the parties have three months to request referral of the case to the Grand Chamber for fresh consideration.
II. EXAMINATION BY A PANEL OF JUDGES
Requests for referral to the Grand Chamber are examined by a panel of judges which decides whether or not referral is appropriate.
The members of the Panel consider whether the case warrants referral to the Grand Chamber on the grounds that it is exceptional as indicated in the text of Article 43.
They do not seek to impose their views on the merits of the case, nor do they vote to refer a case because they disagree with the Chamber’s reasoning or would themselves have voted differently.
The members of the Panel thus do not assess the merits of the case but, as in national leave-to-appeal procedures, express views as to whether the case should be referred to the Grand Chamber because it meets the statutory criteria set out above.
Disagreement on issues of fact, on the inferences to be drawn from the facts and/or, for instance, on the point at which, in the particular circumstances of the case, the fair balance between conflicting rights should have been struck does not necessarily mean that the conditions for referral are met.
Indeed, the Grand Chamber should not be seen as an appeal court whose function is to correct alleged errors of fact or of assessment of the various features of each individual case. The intervention of the Grand Chamber is instead limited to cases which, by their nature and by the nature of their legal, social and political implications, are capable of having a serious impact on the extent and scope of the protection afforded by the Convention.
The panel shall accept the request if the case raises a serious question affecting the interpretation (A) or application (B) of the Convention or the Protocols thereto or a serious issue of general importance (C).
A. A SERIOUS QUESTION AFFECTING THE INTERPRETATION OF THE CONVENTION OR THE PROTOCOLS THERETO
A serious question affecting the interpretation of the Convention is raised when a question of importance not yet decided by the Court is at stake, or when the decision is of importance for future cases and for the development of the Court’s case-law.
This may also be the case when the impugned judgment is not consistent with a previous judgment of the Court.
B. A SERIOUS QUESTION AFFECTING THE APPLICATION OF THE CONVENTION OR THE PROTOCOLS THERETO
A serious question affecting the application of the Convention is raised when a judgment necessitates a substantial change to national law or administrative practice.
This may happen in cases in which the Court has initiated the “pilot-judgment procedure” in accordance with Rule 61 of the Rules of Court and has therefore considered that the facts of the application disclosed the existence, in the Contracting State concerned, of a “structural or systemic problem or other similar dysfunction”.
However, the mere fact that a Chamber judgment has been adopted following the pilot-judgment procedure does not, in itself, mean that the case must be referred to the Grand Chamber.
C. A SERIOUS ISSUE OF GENERAL IMPORTANCE
A serious issue of general importance could involve a substantial political issue or an important issue of policy.
D. NOT THE MERE FACT THAT THE CASE IS FACTUALLY COMPLEX, POLITICALLY DELICATE OR HAS GIVEN RISE TO DISSENTING OPINIONS
The mere fact that the case is factually complex, politically delicate or has given rise to dissenting opinions does not, as such, justify its referral to the Grand Chamber.
For example, the Panel systematically rejects requests which challenge the factual findings of the Chamber in cases concerning prison conditions or other issues under Articles 2 and 3 of the Convention where the case-law is well established.
However, under certain circumstances, these same facts may be factors militating in favor of the existence of one or more of the grounds for referral set forth in Article 43 § 2 of the Convention (in other words, when the dissenting opinions are, in the Panel’s view, well-reasoned on key Convention issues and/or point out inconsistencies in the case-law).
III. CASES IN WHICH THE REFERRAL REQUEST MAY BE GRANTED
Cases that will be sent to the Grand Chamber are likely to belong to the following categories:
A. CASES AFFECTING CASE-LAW CONSISTENCY
The fundamental role of the Panel is to ensure that Chamber judgments are consistent with the established case-law of the Court.
When a Chamber judgment significantly departs from the previous case-law, the Panel exercises the function conferred on it by the Convention by asking the Grand Chamber to settle the interpretation to be pursued and to determine the dispute.
B. CASES WHICH MAY BE SUITABLE FOR DEVELOPMENT OF THE CASE-LAW
The Panel may also decide to refer to the Grand Chamber cases which do not disclose, as such, a (potential) inconsistency with the previous case-law, but which present an opportunity for development of the case-law where this is considered appropriate.
C. CASES WHICH ARE SUITABLE FOR CLARIFYING THE PRINCIPLES SET FORTH IN THE EXISTING CASE-LAW
In some cases referred to the Grand Chamber, the Chamber judgment, without being per se innovative, touched on an area in which it was felt that clarification of the relevant basic principles was needed.
D. CASES IN WHICH THE GRAND CHAMBER MAY BE CALLED UPON TO RE-EXAMINE A DEVELOPMENT IN THE CASE-LAW ENDORSED BY THE CHAMBER
The Chamber may adopt a judgment which, without explicitly conflicting with previous authorities, may be seen as a significant development of the case-law principles.
In these cases, the Panel may feel that confirmation (or rejection) of such a development is needed from the Grand Chamber.
This is notably the case when the Chamber has found a violation of the Convention in circumstances which, in the past, had not systematically led to such a conclusion.
E. CASES CONCERNING “NEW” ISSUES
A reason in favor of referral might be that the Chamber judgment touches on a (relatively new) field of law which has not previously been examined by the Court, and/or which is socially and politically sensitive.
In these cases it is frequently felt that guidance is needed from the Court’s enlarged formation on issues which, on account of their original character and the debate they generate in society and the media, should be subjected to the most careful scrutiny.
Thus, the Grand Chamber may be given the opportunity to adapt the existing case-law to new situations and/or to develop new principles, having regard to the possible implications for future, similar cases.
F. CASES RAISING A “SERIOUS ISSUE OF GENERAL IMPORTANCE”
A sub-group of the category of cases mentioned under (E) is that of cases which, without addressing a “new” field of law, raise an important issue at European or global level.
G. “HIGH-PROFILE” CASES
Some cases are referred to the Grand Chamber both because of the complexity of the legal issues they raise and because of the serious implications for the State concerned.
The latter may stem from the identity of the applicant or from the fact that the application concerns matters which are at the center of a sensitive national, European or global debate.
These cases relate to historical, geopolitical or religious issues. They may also concern a specific incident or crime which has attracted exceptional media attention.
IV. REQUESTS THAT ARE IN PRINCIPLE REJECTED
The Panel has developed the practice of systematically rejecting referral requests which challenge:
A. DECISIONS BY THE CHAMBER TO DECLARE A COMPLAINT INADMISSIBLE
Applicants should be reminded that according to the Court’s case-law, the content and scope of the case referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility.
This means that the Grand Chamber may examine the case in its entirety in so far as it has been declared admissible. It cannot, however, examine those parts of the application which have been declared inadmissible by the Chamber.
B. AWARDS MADE BY THE CHAMBER UNDER ARTICLE 41 OF THE CONVENTION
The award at issue constitutes the application of Article 41 to the nature of the violation found and may be seen as a factual assessment.
Moreover, in many cases the Chamber decides the amount of just satisfaction on an “equitable basis”, and such an assessment does not, by its very nature, lend itself to a review by the Grand Chamber.
C. THE CHAMBER’S ASSESSMENT OF THE FACTS
The Grand Chamber should not be seen as an appeal court with the function of correcting errors of fact allegedly made by the Chamber.
If that were the case, there would be no need for filtering by the Panel, and the parties would have direct access to the Grand Chamber whenever the establishment of a fact by the Chamber ran counter to their interests.
D. THE APPLICATION OF WELL-ESTABLISHED CASE-LAW
Unless the Panel considers that it is time for development of the Court’s case-law, judgments entailing “normal” application of well-established case-law are in principle not referred to the Grand Chamber.
V. DECISION OF THE CASE BY MEANS OF JUDGMENT
If the Panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.
ABOUT THE AUTHOR: Chihaoui Zouhaier
Lawyer Chihaoui is the founder of the law firm "Just Rights", and is specialized in petitioning before the European Court of Human Rights and in particular in drafting applications to the European Court, submitting requests for referral to the Grand Chamber, and in litigating before the Grand Chamber.
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