Slovenia v. Croatia: A New Admissibility Criterion for Inter-State Applications under the ECHR?

Background and Main Legal Questions of the Decision

On 18 December 2020, the Grand Chamber issued its decision on the application of Slovenia against Croatia. The application was lodged in 2016 and relates to unpaid and overdue debts owed to Ljubljanska Banka d.d. by Croatian companies following the disintegration of the former Socialist Federal Republic of Yugoslavia. Slovenia alleged multiple violations of Art. 6 § 1 due to actions of the Croatian judiciary and executive in respect of domestic proceedings initiated by Ljubljanska Banka.

In 2007, Ljubljanska Banka d.d. lodged an individual application under Art. 34 alleging similar violations. In 2015, the Court rejected the application due to lack of locus standi as it found that Ljubljanska Banka was not a “non-governmental organization” within the meaning of Art. 34. The main question arising out of the related inter-State application is whether Slovenia can submit an application under Art. 33 in order to vindicate the rights of a legal entity which is not eligible to lodge an individual application. Due to the unique characteristics of the admissibility of inter-State applications, the Court was also called upon to decide whether the main question could be adjudicated during the admissibility or merits phase of the proceedings.

This post will not delve into details about the arguments of the applicant and respondent State which were analysed in an earlier blog post; rather, its aim is to examine how this recent decision fits into the inter-State case-law of the Convention organs and whether Slovenia v. Croatia brings forth a groundbreaking admissibility criterion or if it simply clarifies an already existing requirement.

Does the Court have the right to examine the main question in the admissibility phase?

Admissibility requirements for inter-State applications under Art. 33 and individual applications under Art. 34 vary considerably. The Convention itself explicitly excludes, in respect of inter-State applications, inadmissibility grounds relating to procedural requirements in Art. 35 § 2 and the merits of an application in Art. 35 § 3. The latter rule has been interpreted by the Court and the Commission as excluding any examination of issues related to the merits of inter-State applications in the admissibility phase (Cyprus v. Turkey (III) (dec.), §45, France, Norway, Denmark, Sweden and the Netherlands v. Turkey (dec.), §9, Georgia v. Russia (I) (dec.), §43). The lower admissibility threshold applicable to inter-State applications has inspired the Steering Committee for Human Rights of the Council of Europe to refer to Art. 33 as the unqualified right of a State to bring any alleged breach of the Convention to the Court (Draft CDDH report on the effective processing and resolution of cases relating to inter-State disputes).

Therefore, in principle, during the admissibility phase, the Court is limited to the examination of the four jurisdictional grounds (ratione personae, materiae, temporis and loci) as well as compliance with Art. 35 § 1; that is, whether the inter-State application in question has been lodged within the six-month time-limit and whether the requirement of exhaustion of domestic remedies has been complied with or should be dispensed with in accordance with applicable exceptions.

However, early on, the Commission left open the question as to whether an inter-State application can be rejected at the admissibility phase on the basis of a general principle of international law prohibiting the abusive initiation of proceedings before international tribunals (The Greek case (I) (dec. II), p.22; Cyprus v. Turkey (III) (dec.), §56). The Commission went even further in its decision on the admissibility of Cyprus v. Turkey (IV); the inability of the Convention organs to examine an issue related to the merits at the admissibility phase cannot prevent them from establishing, under general principles governing the exercise of jurisdiction by international tribunals, whether they have any competence at all to deal with the matter laid before them (p.22). The Court first endorsed this approach in its decision on Georgia v. Russia (II) (§64).

 In Slovenia v. Croatia, the Court went one step further and related this approach to the principle of procedural economy. The Court considered that the question of whether Slovenia could lodge an application for the benefit of Ljubljanska Banka related to the special character of the Convention as an international instrument of human rights protection and, as such, touched upon an issue of general international law. Therefore, it constituted a genuine dispute as to whether the Court had jurisdiction within the meaning of Art. 32 and could be examined at the admissibility phase.

Can Slovenia lodge an application to protect Ljubljanska Banka’s rights?

The Court reiterated that the Convention must be interpreted in the light of the rules of interpretation provided for in Arts. 31 to 33 of the Vienna Convention on the Law of Treaties. Given the Convention’s status as a treaty for the effective protection of human rights, the Court clarified that the Convention must be read as whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions. This well-established general principle of interpretation of the Convention applies to substantive provisions, but includes jurisdictional and procedural provisions like Arts. 1, 33 and 34.

Secondly, the Court stressed that, in accordance with the very nature of the Convention as a human rights instrument, all applications, including inter-State applications, must relate to individuals directly or indirectly injured by actions or omissions of States. The Court’s two just satisfaction judgments in respect of inter-State applications unequivocally confirm the individual-centered character of the Convention (Cyprus v. Turkey (IV) (Just Satisfaction) [GC], §46; Georgia v. Russia (I) (Just Satisfaction) [GC], §26). If the Court were to find a violation in an inter-State application lodged on behalf of, and to protect, an entity lacking sufficient institutional and operational independence from the applicant State, the amount awarded as just satisfaction would eventually benefit the latter.

In Slovenia v. Croatia, the Court, for the first time in its jurisprudence, found a direct systemic correlation between Arts. 33 and 34 of the Convention. In the words of the Court, “only individuals, groups of individuals and legal entities which qualify as ‘non-governmental organizations’ within the meaning of Art. 34 can be bearers of rights under the Convention”. Therefore, the Court considered that it lacked jurisdiction to examine the inter-State application in question as Ljubljanska Banka did not enjoy sufficient institutional and operational independence from Slovenia and could not be regarded as a “non-governmental organization” within the meaning of Art. 34.

Conclusion: A new admissibility criterion?

The Court’s decision on Slovenia v. Croatia is groundbreaking in the sense that the Court for the first time explicitly pronounced on the relationship between Arts. 34 and 33. The Court made clear that an inter-State application cannot be used to bypass the requirements of Art. 34. An inter-State application can only be used to protect humans or legal entities which enjoy rights under the Convention.

This pronouncement cannot be considered as an additional admissibility requirement in respect of inter-State applications. From the fumbling stage of the inter-State application and the Convention itself, the Commission stressed that the Convention (only) creates special objective obligations owed by States towards individuals within their jurisdiction (Cyprus v. Turkey (III) (dec.), §11; France, Norway, Denmark, Sweden and the Netherlands v. Turkey (dec.), §41). The role of the High Contracting Parties is to collectively guarantee the rights and freedoms set forth in the Convention (Austria v. Italy (dec.), p.19; France, Norway, Denmark, Sweden and the Netherlands v. Turkey, (dec.), §40). As the Commission noted in 1968 the procedural provisions of the Convention are (also) based on the concept of a collective guarantee; a State under former Art. 24 and present Art. 33 cannot be regarded as exercising a right of action for the purpose of enforcing its own rights (The Greek case (I) (dec. II), p. 22). In other words, a State cannot lodge an inter-State application under Art. 33 to its own advantage.