The Objective Friends of the Court – New Insights into the Role of Third Parties before the European Court of Human Rights

On 20 March 2023, the European Court of Human Rights published a Practice Direction on the modalities of Third-Party Intervention and announced an amendment of the Rules of Court. The clarifications and changes contained therein could not come at a better time. Just three days earlier, the Court had announced that 26 member States would intervene in the combined case concerning the full-scale invasion of Ukraine in 2022 and the conflict in eastern Ukraine that began in 2014 (now: Ukraine and the Netherlands v. Russian Federation, nos. 8019/16, 43800/14, 28525/20, 11055/22). With this unprecedented wave of intervening member States, the procedural instrument under Art. 36 (2) ECHR and Rule 44 has gained considerable prominence.

By way of third-party intervention, other persons than the parties can submit information and their views to the Court that is to decide on a given dispute. The procedural tool is aimed at assisting the Court in its decision finding. In the European system of human rights, three different types of stakeholders may request leave to intervene: non-involved member States (third-State interveners), persons assisting the Court with their expertise (classical amici curiae) as well as persons whose rights may be affected by the decision. Third-party interveners do not have to prove a direct legal interest in the outcome of the case.

The update dedicated to third-party intervention shows that the Court is prepared to engage with submissions made by third parties. While the Court clarified some aspects that had been ambiguous, others might spark further discussion. This short piece sets out what changes have been implemented with the update and how they differ from current practice, with a particular focus on the case dealing with the Russian Invasion in 2022.

The context of the update

Already at the Copenhagen High-Level Conference in 2018 on reform of the European Convention system, the importance of third-party intervention by member States was highlighted. The final declaration calls on member States to engage in a dialogue with the Court through this instrument (para. 34) and to do so in a coordinated manner (para. 40). It also invites the Court to support third-party intervention (para. 39), which triggered the process that culminated in the recent update.

The publication of the update is also to be seen in the context of the historic wave of third-party interventions in the case concerning the Russian invasion in 2022 (formerly Ukraine v. Russia No. X), which vastly outnumbers all previous third-State interventions. The additional submissions of these third States, such as legal arguments or evidence gathered from interviews with Ukrainian refugees in receiving member States, could be helpful in deciding this case with complex facts. However, it is to be feared that the vast extent of additional input with political intentions might overburden the Court. It is therefore not surprising that the Court has asked the States to coordinate their contributions.                                                 

Implemented technical changes through the update

The Plenary Court decided to amend the Rules of Court regarding third-party intervention with two clarifications, which entered into force on 20 March 2023. First, the Rules were amended to clarify the relevant dates for the time limits for requesting leave to intervene. While the previous wording in Rule 44 § 4 (b) second sentence had led to much confusion among potential interveners, the publication in the HUDOC database is now clearly provided as the start of the time limits of twelve weeks. Secondly, an additional application stage for hearing participation was introduced. Participation of third-party interveners in the public hearings has always been only permitted ‘in exceptional cases’ (Rule 44 § 3 (a)). But the amended version added the requirement for a second formal request to intervene during the hearings within a time limit of four weeks (Rule 44 § 3 (b) third sentence), which is distinct from the request to intervene with comments.

Additionally, the President of the Court issued a soft-law guideline, a so-called Practice Direction under Rule 32, on the modalities of third-party intervention. Within this update, the Court mostly clarifies existing rules and practice. Setting out the formal requirements is a welcome attempt to increase the usefulness of third-party contributions to the Court, particularly given its limited resources.

The Court’s understanding of Third-Party Intervention

The Practice Direction gives an insight into how the Court envisages third-party interventions and what it expects from their submissions. The Court defines third party intervention as a “procedural device whose chief purpose is (1) to enable the Court to become acquainted with the views of States and other persons who are not parties to a case before it on the issues raised by that case, and (2) be presented with information” that is submitted as “impartially and objectively” as possible (Practice Direction, para. 2, emphasis added). With this definition, I would argue, the Court identifies two functions of third-party interventions: On the one side, they inform the Court of the intervener’s opinions, which I would call a “dialogue” function. On the other hand, they are meant to provide the Court with impartial and objective information or arguments that have not been put forward by the parties, an “input” function. These two functions can prove contradictory or incompatible in practice, as expressing a view does not necessarily go hand in hand with providing objective information.

The analysis of the different motives and procedural requirements provided by the Practice Direction for each category of interveners reveals how the Court understands third-party intervention. According to the Court, amici curiae intervene to assist it with their special expertise (para. 10) and are barred to deal with the particular circumstances of the case (para. 34 lit. b); their intervention thus corresponds to the “input” function.

To the contrary, the so-called “interested” third parties are intervening because their own rights might be affected by the later judgment (para. 12). In practice, the Court requires that their observations relate exclusively to the facts and legal aspects connected with that specific legal interest (para. 34 lit. c). Given the self-affectedness of these persons, this category serves the right to be heard and follows the “dialogue” function conveying the views of the intervener.

Finally, the intervention of member States under Art. 36 (2) ECHR is based on the indirect effect that the outcome of a given case may have on their conventional obligations, because the Court’s judgments “elucidate and develop the rules” (para. 8). Third-State intervention thus primarily responds to the “dialogue” function. Empirically, it is the States’ self-interest in the case’s outcome that is the most frequent reason for their intervention (Dzehtsiarou 2023). In this line, the Court requires that States “relate solely to the aspects of the case that are relevant to its interest(s) in it” (para. 34 lit. a). States’ self-interest therefore motivates their intervention, but also limits it in terms of content. Intervention in the form of amicus curiae could be considered if the intervention covers all factual aspects of the case and the focus lies on the submission of evidence, such as intelligence documents or witness interviews.

Interveners do not become parties of the dispute. Therefore, they do not have the full range of procedural rights. Procedurally, third parties are not entitled “to make requests as regards the procedures before the Court, seek a remedy from the Court, participate in friendly-settlement negotiations between the parties, or seek the relinquishment or referral of a case to the Grand Chamber” (para. 2). These limitations indicate that in a metaphorical vehicle of a given dispute, third-party interveners are only in the passenger seat and do not chose the route, which is determined solely by the Applicant in the driver’s seat. 

Third-Party interveners and the expression of solidarity?

In a rather innovative move, the Practice Direction for the first time explicitly clarified that “third parties are not entitled to express support directly for one or the other party” (para. 78). This might come as a surprise given the recent wave of States requesting to intervene explicitly in support of Ukraine’s law fair against Russia. As mentioned elsewhere with Isabella Risini, in the late summer of 2022 an unprecedented number of States have publicly announced their requests to intervene – in a departure of the usual discrete practice. Several States emphasised in these announcements that they wanted to intervene in support of Ukraine. In this line, the intention to seek “accountability for Russia’s unlawful invasion” (Ireland), to “StandwithUkraine” (Estonia) or even to file an “expression of our support and solidarity for Ukraine” (Poland) were presented as the reason to intervene. Romania explicitly stated that it wanted “to intervene in favour of Ukraine”. A similar announcement was made by Canada and Netherlands who claimed to intervene “to support the Gambia in its efforts” before the International Court of Justice to address violations of the Genocide Convention by Myanmar. Overall, an increased use of third-party interventions for political and symbolic reasons, such as the expression of solidarity and support is to be observed in practice (Ünüvar, MEPiPro forthcoming 2023).

Against the backdrop of the very limited scope and purpose of third-party intervention in the European system, it could however be argued that the 26 States have chosen the wrong procedural path to achieve the goals they claim to seek. While by intervening member States arguably participate in the “collective enforcement” mentioned in the Convention’s preamble, their proclaimed intention of supporting Ukraine would have required the submission of a full inter-State application in their own right (Art. 33 ECHR). As part of a multi-applicant coalition against Russia, member States would have had the right to submit one-sided briefs without word-limits dealing with all aspects of the case and to participate in friendly settlement negotiations, like in the Turkish Case. With their public request announcements in mind, the publication of the Practice Direction could thus also be read as a clear message to the now 26 third-States that are filing their intervention by 28 April 2023.

However, the position of the ECtHR, that third-party interveners are not entitled to express support, appears to be rather unique in international law. For example, as Juliette McIntyre outlined, neither the former Permanent Court of International Justice nor the International Court of Justice objected to States coming in support of one of the parties. While it is obviously in the “interests of the proper administration of justice” that the facts submitted to the Court via third-party intervention are as objective as possible, it remains doubtful that any third-party could ever be truly neutral. The question also arises as to whether this restriction is even incumbent on the Court, given that the Convention is entirely silent in this respect. A “objective” appearance may give the intervention more legitimacy on the surface, but it does a rather poor job in disguising the issues with the equality of arms that might arise. It also remains to be seen how the Court will enforce the requirement in practice, given the undeniable increase of third-party intervention’s use as a political tool.

One might wonder why the Court bothered to delineate the categories of third-party interveners and precise their limits. From a procedural point of view, however, it is commendable that the Court clarifies the functions and requirements of the various procedural devices in the conventional tool kit and that it reminds States to choose the right tool accordingly. However, it appears unclear how the Court will deal with third-State interventions that blur the lines between a self-interest driven intervention and the submission of facts and information detached from that interest. This situation could arise in the near future in the context of the Russian invasion case, if States decided to submit information gathered through interviews of Ukrainian refugees on their territory.