Tuesday 29 June 2010

First Decision on Lack of a Significant Disadvantage

On the very day of the entry into force of Protocol 14, 1 June 2010, the Court immediately seized the opportunity to start using a new key admissibility criterion introduced by that Protocol, as a press release of the Court highlights this week. In the case of Adrian Mihai Ionescu v. Romania, the Court used the criterion that the applicant had not suffered a "significant disadvantage". The applicant's claim concerned a claim of 90 euros against a bus company with which he had travelled between Bucharest and Madrid, for not providing the promised services. In national court proceedings, his case was assessed his case and his complaints were rejected. The national Court did not rule on his request that the defendant company produce certain items of evidence. Higher courts dismissed his appeals.

The Court used the case to flesh out the three main elemenets of the admissibility criterion found in Article 35, parageraph 3: the Court can declare applications inadmissible if 1) "the applicant has not suffered a significant disadvantage", (2) unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits" and (3) "provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal."

As to the first and most crucial element the Court considered both the amount of the alleged loss itself (90 euros) and its relation to the applicants own (financial) circumstances. Neither of these indicated that the applicant was at a significant disadvantage. Thus the test under this first aspect is a double one: first a relatively external assessment of extent of the disadvantage in itself (which in case of financial loss is admittedly more easy to qualify) and second the relation of that loss to the particular situation of the allged victim. For a very poor person, a loss of 90 euros might of course be significant.

Secondly, the Court looked at whether the two "exceptions to the exception" led to a different conclusion. As to the respect for human rights, the Court concluded that the relevant legal provisions in Romania had been repealed and the case was in that sense of historical interest only. As to the question of whether the case had been duly considered by a domestic court, the Court answered this positively. Thus, it rejected the complaint.

In making its arguments under the three tests, the Court not only used the explanatory report to Protocol 14, but also its own earlier case law. In the case of the 'significant disadvantage' this noticeably included a range of dissenting opinions in earlier cases!

It may be noted that the Court assessed the case in detail and declared part of the complaint ill-founded - the admissibility of evidence issue was declared manifestly ill-founded, whereas the complaint about the proceedings in the higher courts were deemed not to be manifestly ill-founded or an abuse of the right to petition, but rather inadmissible under the new admissibility criterion. This seems to send out the signal that the Court will not too easily apply this criterion to do away with an entire application, but will use it with a caution that respects the various aspects of a complaint. This may assuage the concerns and fears of many, but on the other hand may diminish the efficiency gains of the new criterion. Let's hope the press department of the Court will keep highlighting new developments in these normally difficult to trace non-admissibility decisions.

The case itself is available only in French thus far, but a press release in English can be found here. For a short fact sheet on the reforms of Protocol 14, click here.