Friday 22 January 2021

Guest Post: The Recent Rise in ECtHR Inter-State Cases in Perspective

By Elif Erken & Claire Loven, PhD researchers at Utrecht University


For those with an interest in inter-State cases before the European Court of Human Rights (Court) January 2021 was an important month. In January 2021, the Court issued its admissibility decision in the inter-State case of Ukraine v Russia (RE Crimea) and its judgment on the merits in the case of Georgia v Russia (II). Such a start of 2021 is a fitting continuation of last year, where we have witnessed renewed attention for the inter-State complaint procedure with a rise in new inter-State cases being registered by the Court. In this blogpost, we assess this recent rise in inter-State cases (also discussed here and here) in light of the original aim and purpose of the inter-State procedure and consider the extent to which these recent cases can be seen to fall within that purpose. By further contexualising these cases within the inter-State typology as advanced by former president of the Court Dean Spielmann, we not only give more context to the recent rise in inter-State cases, we also consider whether all opportunities offered by the inter-State procedure are currently employed. We continue by firstly elaborating on the historical context and original aim of the inter-State procedure. Thereafter, we focus on the recent inter-State cases as well as Spielmann’s typology. We end by shedding some light on possible future usages of the inter-State procedure.

Setting the stage: historical background 


The Convention was drafted in the years after the Second World War, which had provided horrific examples of how States can misuse their power and deeply violate individuals’ dignity, autonomy and freedom. In those early drafting years, the fear of a communist threat coming from Eastern Europe was, moreover, existent in democratic Europe. With these circumstances in mind, the Convention system was envisaged to function as a ‘rampart against tyranny and oppression’ and as an ‘alarm-bell’ for democratic Europe (see extensively Bates 2010). Originally, the inter-State complaint procedure was the primary collective enforcement mechanism for ensuring that the Convention could fulfill these functions. When the Convention entered into force in 1953, the inter-State procedure was a mandatory requirement for the States ratifying the Convention while, at that time, the right of individual petition was only optional.


The inter-State complaint procedure was supposed to function as a mechanism allowing Convention States to collectively guarantee the rights and freedoms enshrined in the Convention (see also the Preamble). Put more concretely, an inter-State case was not to be regarded as ‘exercising a right of action for the purpose of enforcing its own rights, but rather as bringing before the Commission an alleged violation of the public order of Europe’ (Austria v Italy EComHR 11 January 1961). This also entails that the inter-State procedure was meant to have an objective character. Its aim is to protect the fundamental rights of individuals against violations by Convention States, rather than to implement mutual rights and obligations between Convention States (see also Ireland v the UK ECtHR 18 January 1978).


Although the inter-State procedure was not meant to enforce States’ own rights, it should be noted that the drafters of the Convention had foreseen that, because of political reasons or sensitivities, Convention States would be reluctant to bring a complaint against another Convention State when they did not have a special interest in the case. That States are in practice more inclined to bring a case before the Court when they have an interest of their own is reflected in the inter-State cases brought before the Court more recently, as is further discussed below.


Recent rise in inter-State cases


Ever since the first inter-State case was lodged in 1957, that is, Greece v the UK which concerned alleged violations of Convention rights in Cyprus, the overall rate of inter-State cases before the Court has been low. Yet, although such cases are rare, they do constitute an important aspect of the Court’s case law. Interestingly, in the year 2020, the Court was seized by numerous States with questions regarding Convention compliance by other States, demonstrating a rise of inter-State applications. Currently, there are ten such cases pending before the Court, with six applications introduced in the year 2020. These recently introduced cases range from those addressing an impending extradition of a Latvian national, detained in Denmark, to South Africa (see, Latvia v Denmark, resolved after the Latvian national was returned to Latvia) to the inter-State application of Liechtenstein v the Czech Republic, where the former complained of alleged breaches of property rights of Liechtenstein citizens. Yet, quite a number of the recently introduced cases are born out or related to situations of crisis and conflict. For example the case of the Netherlands against the Russian Federation, lodged in 2020 as well (discussed here, here and here), concerns the downing of flight MH-17 over Eastern Ukraine, which resulted in the death of all those aboard the plane, the majority of which were Dutch citizens. Similarly, the Court received several requests for interim measures in the context of inter-State applications concerning the situation in the Nagorno-Karabakh region.


As noted in the introduction above, the Court has, in January 2021, taken two important decisions regarding the inter-State cases of Ukraine v Russia (RE Crimea) and Georgia v Russia (II). The Court’s partial admissibility decision in the case of Ukraine v Russia (RE Crimea) paved the way for a judgment on the merits. In this case, which addresses events in Crimea in 2014 and 2015, Ukraine alleges that the Russian Federation ‘had exercised extraterritorial jurisdiction over Crimea and had been responsible for an administrative practice entailing numerous violations of the Convention’ (para 7 of the judgment). Although the Court refrained from engaging with the question of whether the admission of Crimea into Russia had been lawful, as it had not been ‘called upon’ to do so, it does decide on a number of other aspects. Most importantly, it found that Russia had jurisdiction on the basis of effective control it exercised over Crimea. As such, Russia is considered to have jurisdiction over Crimea and consequently, the Court decided it has competence to examine the complaints raised (paras 276-352). Further, the Court rendered its decision in Georgia v Russia (II), thereby addressing the armed conflict that took place in August 2008, between Georgia and the Russian Federation. Albeit with many separate opinions, the Court decided on the questions of jurisdiction of the Russian Federation during both the active phase (no jurisdiction) and after-math of hostilities (jurisdiction). In the respect of the latter, it identified numerous violations, including of Articles 2 and 3 of the Convention.


The Court thus cleared one inter-State case off its docket, and opened the door for a new one. Coupled with the recently introduced cases, the Court will continue to be pre-occupied with cases concerning (military) conflict in the years to come.


Spielmann’s typology of inter-State cases


A few years ago, the President of the Court at the time, Dean Spielmann, advanced a ‘basic typology’ for inter-State cases. He distinguished two types of inter-State cases in this respect, though noting that these typologies may converge, and are not all-encompassing. His first category concerned those inter-State cases where ‘the applicant State is in effect standing in the place of the direct victims of a violation of human rights’, thereby referring to this type of case as ‘a form of subrogation’. As an example of such a case, Spielman noted the Cyprus v Turkey cases. This type of inter-State case can now be seen in the above-mentioned case of Liechtenstein and the three discussed cases against Russia. For example, with regard to the Dutch inter-State case concerning MH-17, the Dutch government stated that the Netherlands aims to share and make available all relevant information regarding the downing of this flight with the Court, and thereby also provide full support the individual cases by the victims’ next of kin that are also pending before the Court concerning this event; in which the Netherlands also acts as a third-party intervener.


The second category noted by Spielman concerned those cases regarding the vindication of the European public order, that is, ‘action taken by one or more States […] seeking to uphold the rights that are the benchmark of the modern democratic state’. As such, this type of case appears mostly in line with the purpose of the inter-State procedure as originally seen by the Court (or Commission) itself, as was noted above. Yet, the cases for which the Court has most recently been seized do not necessarily seem to fall within this category. Although the European Convention system has experience with this type of cases, most notably the First Greek case that was lodged by the Nordic States of Denmark, Norway, Sweden and by the Netherlands. In that case, the applicant States condemned the human rights violations committed by the Greek government, but no such cases have recently been introduced.




The recent rise in inter-State cases seems to mainly concern those cases born out of (military) conflict between States. These cases can be considered to fall in Spielmann’s first category of inter-State cases as the applicant State is in effect standing in the place of the direct victims of a violation of human rights. It will be interesting to see if this recent rise in inter-State cases continues, and if so, if States are willing to also consider the original aim of the inter-State procedure, that is, complaints about violations of the public order of Europe. Such cases are not alien to the Court, as noted by Spielmann in his typology, and presently, there are situations in Europe that prima facie appear to lend themselves for such complaints regarding violations of the public order of Europe – one can think here of Poland, and Hungary, for instance. However, it has to be awaited if States appear willing to take this route in the future. If so, the recent rise in inter-State cases might not only continue, but also diversify.