Legal summary
June 2023
Pivkina and Others v. Russia (dec.) - 2134/23, 2156/23, 4556/23 et al.
Decision 6.6.2023 [Section III]
Article 35
Article 35-3-a
Ratione temporis
Limits of Court’s jurisdiction with respect to acts or omissions spanning across the date on which a respondent State ceased to be a Party to the Convention: communicated ; remainder inadmissible
Facts – The Russian Federation ceased to be a member of the Council of Europe on 16 March 2022 and ceased to be a Party to the Convention on 16 September 2022 (“the termination date”) (see the “Resolution of the European Court of Human Rights on the consequences of the cessation of membership of the Russian Federation to the Council of Europe in light of Article 58 of the European Convention on Human Rights” adopted on 22 March 2022).
The present applications concern different factual scenarios alleging violations of various Convention provisions. Some of the facts occurred up until the termination date, some after the termination date and some spanned across the termination date.
Law – As at least some of the facts in the applications had taken place after the termination date the Court was called upon to determine whether it had jurisdiction to deal with them. The Court’s ability to determine its own jurisdiction was essential to the Convention’s protection system. By acceding to the Convention, the High Contracting Parties had undertaken to comply not just with its substantive provisions but also with its procedural provisions, including Article 32, which gave the Court exclusive authority over disputes regarding its jurisdiction. The Court’s jurisdiction could not therefore be contingent upon events extraneous to its own operation, such as domestic legislation that sought to affect or limit its jurisdiction in pending cases. Accordingly, while Russia’s Federal law no. 43-FZ of 28 February 2023 provided that the Convention should be considered as having ceased to apply to the Russian Federation as from 16 March 2022, that legislation could not change or diminish the scope of the Court’s jurisdiction.
(a) Acts or omissions occurring up until the termination date – In the cases where all acts and judicial decisions leading to the alleged Convention violations had occurred up until the termination date, the Court determined it had jurisdiction to deal with them.
(b) Acts or omissions occurring after the termination date – In the case of one applicant, both the triggering act and the applicant’s judicial challenge to it had occurred after the termination date. Therefore, in accordance with Article 58 and the Plenary Court’s resolution of 22 March 2022, the Court did not have jurisdiction to examine his application and it was incompatible ratione personae.
(c) Acts or omissions spanning across the termination date – The question of whether an alleged violation was based on a fact that had occurred prior or subsequent to a particular date gave rise to difficulties when the facts relied on fell partly within and partly outside the period of the Court’s competence. Although this scenario was novel, it was similar to situations where the acts or omissions giving rise to the alleged violations had spanned across the ratification date and therefore in formulating the appropriate test the Court drew upon the case of Blečić and the approach followed by other international courts :
in cases where the interference had occurred before the termination date but the failure to remedy it had occurred after the termination date, it was the date of the interference that had to be retained for determining the Court’s temporal jurisdiction. That approach avoided the situation where a State might evade its responsibility for the wrongs or damage caused while the Convention was in effect, prior to its termination. It also ensured that complaints were not treated differently based solely on the amount of time the exhaustion process might have taken, and it prevented the State from evading responsibility by protracting remedial proceedings. Therefore, in order to establish the Court’s temporal jurisdiction, it was essential to identify, in each specific case, the exact time of the alleged interference, considering both the facts of which the applicant had complained of and the scope of the Convention right alleged to have been violated.
(i) Complaints under Article 3 (substantive and procedural aspects): One of the applicants had complained about an instantaneous act of the police ill-treatment: as it had occurred before the termination date (in 2021), it fell within the Court’s temporal jurisdiction. Regarding the alleged lack of effective investigation in that respect, the “significant proportion” test elaborated for situations spanning across the ratification date was also applicable in respect of situations spanning across the termination date. Thus, what was important for determining the Court’s temporal jurisdiction was that a significant proportion of the required procedural steps were or ought to have been carried out during the period when the Convention was in effect in respect of the respondent State. That had indeed been so in the relevant applicant’s case. Therefore, while the final judicial decision concluding the chain of appeals against a refusal to open a criminal investigation had been issued after the termination date, the procedural aspect of her complaint under Article 3 also fell within the scope of the Court’s temporal jurisdiction.
(ii) Complaints under Articles 3 and 5 § 3 relating to a “continuous situation”: A “continuing situation” that spanned across the termination date fell within its temporal jurisdiction only for the part occurring before that date. The reason for that approach lied in the understanding that from the day following the termination date, the respondent State was no longer bound by the Convention, for example, to ensure Convention-compliant conditions or to conduct judicial proceedings within a reasonable time. The result should be different, however, where it could be demonstrated that the situation was a “continuous” effect of an act that preceded the termination date. Thus, a period of detention that had been approved before the termination date but extended beyond it would fall within the Court’s temporal jurisdiction in its entirety on account of the “continuous” effect of that detention order. In contrast, a factual situation such as allegedly inhuman conditions of confinement, even if continuous, had no “overflowing” effects and stopped at the termination date.
In so far as one applicant had complained, under Article 3, about the conditions of his confinement in the courthouse during detention hearings, that complaint fell within the Court’s jurisdiction only in the part concerning hearings preceding the termination date and was incompatible ratione temporis as regards the hearing after that date. Regarding that applicant’s complaint under Article 5 § 3 about his pre-trial detention, the period falling within the Court’s jurisdiction extended from 11 July 2022, when he had been taken into custody, to 11 October 2022, the date until which the latest detention extension had been approved before the termination date. Insofar as the complaint concerned his subsequent detention (after 11 October 2022), it was incompatible ratione temporis.
(iii) Complaints under Article 6 relating to the fairness of a trial: As a general rule, a defendant could not claim to be a victim of a violation of Article 6 before he or she was finally convicted. Accordingly, only the complaint concerning the proceedings, where a judgment at last instance had been given before the termination date, fell within the Court’s jurisdiction; the complaints concerning the proceedings where a judgment at last instance had been given after that date, were incompatible ratione temporis. That finding was also applicable to the complaints under Articles 7 and 18 which had arisen from the same set of proceedings.
(iv) Complaints under Articles 8, 10 and 11: In the relevant cases, the acts that had given rise to the complaints had occurred before the termination date, while the final appeal decision had been issued after that date. Accordingly, the Court needed to determine which facts had been constitutive of the alleged interference.
- Article 8 – The search of an applicant’s home and summer cottage was an instantaneous act that had taken place before the termination date. While the determination of his appeal against the search warrant had occurred after that date, it should be regarded as the exercise of an available domestic remedy rather than a new instance of interference. That complaint therefore fell within the scope of the Court’s jurisdiction.
- Article 10 – Acts constitutive of an interference with the right to freedom of expression encompassed any restrictive measures taken against an applicant in connection with his or her expressive conduct, and the Court’s jurisdiction should be based on whether such acts had occurred before or after the termination date.
In the relevant cases, the acts constitutive of interference with the right to freedom of expression (such as arrest and detention on remand, institution of the administrative-offence proceedings, search and seizure of a journalist’s smartphones and laptops) had occurred before the termination date; they fell therefore within the scope of the Court’s temporal jurisdiction.
- Article 11 – The Court reiterated that an interference with the right to freedom of assembly did not have to involve an outright ban on assembly, whether legal or de facto, and could take various forms, such as measures taken by authorities before or during an assembly, as well as punitive measures taken afterwards. The relevant applicants’ arrests before and during a protest had had occurred before the termination date and thus fell within the scope of the Court’s jurisdiction.
(v) Remaining complaints under Article 5 of the Convention and Article 2 of Protocol No. 7: An applicant complained firstly, that being escorted to the police station and her detention there had been unnecessary and irregular from the standpoint of domestic law; and, secondly, that the custodial sentence had been enforced immediately, undermining her right of appeal. All the instances of deprivation of liberty which that applicant had complained of had occurred before the termination date. Her subsequent complaints to the courts of appeal, which had given their decisions partly before and partly after the termination date, should be regarded as the exercise of an available domestic remedy rather than a new or independent instance of interference. Therefore, the acts constitutive of interference fell within the scope of the Court’s jurisdiction.
Conclusion: complaints falling within the Court’s jurisdiction to be communicated to the respondent Government; remaining complaints inadmissible.
(See also Blečić v. Croatia [GC], 59532/00, 8 March 2006, Legal Summary; Fedotova and Others v. Russia [GC], 40792/10, 17 January 2023, Legal Summary)
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This summary by the Registry does not bind the Court.
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