When Should ECtHR Proceedings Become ‘Horizontal’? The Issue of the ‘Interested’ Third Party in A.S. and M.S. v. Italy

On 19 October 2023 the European Court of Human Rights (ECtHR or ‘the Court’) issued its judgment in the case of A.M. and M.S. v. Italy (no. 68618/22). It falls within a group of judgments finding violations of Article 8 of the European Convention on Human Rights (ECHR or ‘the Convention’) on account of the Italian authorities’ failure to guarantee fathers’ contact rights due to the opposition of their children’s mothers (see, recently, A and others v. Italy, A.T. v. Italy, R.B. and M. v. Italy, and Improta v. Italy). It also developed the scope of the rights guaranteed by Article 8 ECHR. Relying on other international instruments (see paras. 107 and 109), the Court found for the first time that a suffocating relationship between a parent and a child, and the psychological manipulation exercised by the former over the latter, may amount to ‘psychological violence’ against children. Therefore, this situation was considered to fall within the notion of ‘private life’ (paras. 122-126) and to give rise to positive obligations of protection (paras. 139-140).

The case, however, is also interesting from a procedural point of view. The application had been lodged by the father on his behalf and on behalf of his 15-year-old son (para. 111). Based on its case-law, the Court found that the father had standing to act on behalf of his son (paras. 113-116).

Judges Wojtyczek and Hüseynov, however, noted that the case originated from a serious conflict between the first applicant and the child’s mother (para. 2 of the Concurring Opinion). Given that, in their view, the Court’s judgment included factual statements against the mother’s interests, notably that she was manipulating the child to prevent him from having a relationship with the father, they considered that the Court should have allowed her to participate in the proceedings.

Therefore, the case raises the issue of whether and in which cases ECtHR proceedings should become ‘horizontal’ and allow ‘interested’ third parties to submit their comments. This has been defined a ‘general problem of legal representation’ caused by the fact that ‘the Court increasingly deals with cases originating in disputes between civil parties’, in respect of which the vertical structure of its proceedings (applicant versus State) would be ill-suited (Concurring Opinion of Judges Ravarani and Elósegui in A.M. and others v. Russia, para. 1). After having clarified the legal framework, this post analyses the reasons in favor and against allowing interested third parties to participate in the Strasbourg proceedings. It concludes that a flexible approach should be followed, and assesses the Concurring Judges’ observations in the light of this finding.

The legal framework and the case-law

Interested intervention is justified by the recognition of the fact that notwithstanding the inter partes effects of international judgments, the latter might ‘still at least exercise de facto influence’ on the position of third parties (Zimmerman and Devaney, para. 4), such as States, international organisations or individuals. An ‘interested’ third party is a person who, although not party to the proceedings, is ‘directly implicated in the facts of the case’ and in respect of whom a decision by a court could have a direct or indirect negative effect (Bürli, p. 159). The interest must be personal, meaning that they may not act to represent other individuals’ interests (Lambert and others v. France, para. 110-111). This notion does not appear in the text of the ECHR and has been overlooked in the literature (see here). Article 36, para. 2, ECHR, and Rule 44, para. 3 (a) of the Rules of Court, generally refer to the President’s power, in the interest of the proper administration of justice, to invite ‘any person concerned who is not the applicant’ to submit written comments or (exceptionally) to take part in the hearing.

In her recent Practice Direction, the President clarified that the expression ‘any person concerned’ includes two categories (para. 5 of the Practice Direction): (a) the so-called amici curiae (‘friends of the Court’), comprising non-governmental organisations, academics, private individuals, enterprises, international organisations or bodies of the Council of Europe, and so on, whose role is providing information that may assist the Court in fulfilling its role (para. 10; see Van den Eynde), and (b) ‘interested third parties’, notably ‘persons whose legal rights may be affected, albeit indirectly, if the Court finds a violation of the Convention or the Protocols thereto’. In this case, the proper administration of justice requires that they be heard before the Court rules on a question which may affect their rights (para. 12). The latter should limit themselves to submitting comments concerning “the factual and legal aspects of the case which relate to [their] specific interest in it” (Practice Direction, para. 34 (c)). Thereby, this intervention serves a ‘dialogue function’ (Batura, in this blog). The Practice Direction further clarified that there are two hypotheses in which interested intervention may be admitted (para. 12).

The first hypothesis concerns cases in which the finding of a violation may lead to the reopening of the domestic proceedings in which the case originated. The Court admitted interested third parties, for example, in cases concerning the enforcement of a parent’s contact rights with his or her children (I.S. v. Greece, paras. 80-83) or the enforcement of residence order in respect of a child in favor of one of the parents (Y.Y. and Y.Y. v. Russia, para. 46) and, more generally, in custody disputes. In those cases the third party was the other parent, given that decisions affecting parental rights may be challenged and amended on the basis of new circumstances (T.C. v. Italy, para. 50), including the finding of a violation of the Convention (Schneider v. Germany, para. 17). Moreover, in cases concerning withdrawal of parental authority and authorisation for adoption the Court had admitted as third parties’ the children’s adoptive parents (Abdi Ibrahim v. Norway, para. 11; Strand Lobben and others v. Norway, para. 8, Omorefe v. Spain) and the same interested children (S.S. v. Slovenia, para. 5). In those cases the reason for admitting them as third parties derives from the fact that the Court might find that the appropriate redress would be the re-establishment of contacts between the child and the biological parents (D.M. and N. v. Italy, paras. 100-101, and Haddad v. Spain, para. 79-80) or even reconsideration of adoption. The Court has also admitted as interested third parties, more generally, the counterparties in the domestic proceedings (Harisch v. Germany, paras. 5 and 32; Schüth v. Germany, para. 5), in cases which might lead to the reopening of the domestic proceedings, for example in the case of employment disputes (Mutu and Pechstein v. Switzerland, para. 6), or civil disputes for defamation or other damages to an individual’s reputation (Annen v. Germany (no. 5), para. 5; M.L. and W.W. v. Germany, para. 5, Bohlen v. Germany, para. 5; Hurbain v. Belgium, para. 9; Halet v. Luxembourg, para. 7).

The second hypothesis concerns cases in which the execution of the Court’s judgment may demand individual measures which may directly affect the third party’s legal position. Some examples are cases in which the Court might find that the enforcement of a return order adopted under the 1980 Hague Convention on the Civil Aspects of International Child Abduction would result in a violation of the Convention (Y.S. and O.S. v. Russia, paras. 74-75; Neulinger and Shuruk v. Switzerland, para. 13), or in which the finding of a violation might lead to the restitution of properties previously expropriated by the State but currently owned in good faith by third parties (Brumarescu v. Romania, para. 9).

The reasons for hearing interested third parties

The analysis shows that there are two fundamental reasons justifying decisions to hear interested third parties.

On the one hand, there is a need for “procedural fairness” of decisions which may affect other individuals’ legal position, in compliance with the principle audiatur et altera pars (see A.S. and M.S. v. Italy, Concurring Opinion of Judges Wojtyczek and Hüseynov, para. 3; see also Forteau, para. 36). In this regard, participation of third parties aims at strengthening the legitimacy of the Court’s judgment and is grounded on the concept of ‘due process or the right of everyone who is affected by a decision to be heard’ (Bürli, p. 159)

On the other hand, it has been observed that those interventions might contribute to the ‘well-informed nature of [the Court’s] decision-making process’ by providing it with ‘essential factual information’ (Concurring Opinion of Judges Ravarani and Elósegui in A.M. and others v. Russia, paras. 1 and 9), especially in cases in which the Court finds that the domestic authorities failed to conduct an in-depth examination of the situation (ibid., paras. 2 and 10).

The reasons for caution in allowing interested interventions

However, there are also reasons, strictly related to the Court’s nature, which call for great caution in this regard. The Court has jurisdiction, under Articles 19 and 32 ECHR, on “all matters concerning the interpretation and the application of the Convention” and, as now expressly stipulated in the Preamble of the Convention, exercises this function in accordance with the principle of subsidiarity and the domestic authorities’ margin of appreciation. This implies that, as a general rule, it is not its task to take the place of the domestic courts, which are in the best position to assess the evidence before them and establish the facts (Vidal v. Belgium, para. 33). The Court will not, in principle, intervene in those issues, unless the decisions reached by the domestic courts appear arbitrary or manifestly unreasonable and provided that the proceedings as a whole were fair (SA-Capital Oy v. Finland, para. 73). It therefore requires cogent elements to lead it to depart from the findings on fact reached by those courts (see Giuliani and Gaggio v. Italy, paras. 179-180). By inviting interested third parties to submit their observations, the Court may give the impression that it is questioning the establishment of the facts as resulting from the domestic judicial authorities’ decisions. This would run counter to the principle pursuant to which the Court is not a fourth instance (Beuze v. Belgium, para. 194).

More generally, a systematic engagement by the Court with comments by the counterparties in the domestic proceedings would also be at odds with the principle of judicial efficiency, given that inviting third parties or, in any case, admitting them to participate in the proceedings entails costs and is time-consuming.

The need for a balanced and case-by-case approach

In light of the above, it does not appear that interested third parties should be heard always and ex officio, as suggested, for example, by Judge Pastor Villanova and by Judge Wojtyczek in his Concurring Opinion in Bochan v. Ukraine (no. 2). On the contrary, the analysis shows that in this sphere ‘it is quite difficult to establish any rigid general rule’, while the situation should be addressed ‘depending on the specific and concrete circumstances of each case’ (Concurring Opinion of Judge Elósegui in Y.Y. and Y.Y. v. Russia, para. 5).

It should be further observed that in the case of A.S. and M.S. the conditions justifying interested third parties’ intervention were not present. The second applicant is almost sixteen years old (para. 2 of the judgment), and the Court noted that, notwithstanding the procedural shortcomings and delays that led to the finding of a violation of Article 8 ECHR, the matter could be considered resolved. In particular, the minor had re-established contacts, and was residing on an equal basis, with both parents (para. 162). In this situation, it seems difficult to imagine that the Court judgment could be used by the father in order to reopen the domestic proceedings to the mother’s disadvantage. Moreover, nothing in the judgment leads to considering that the comments of the mother could have clarified the facts, as the Court did not establish the facts. It observed that, as the domestic authorities had found that the mother had created a suffocating and manipulative relationship with the child (paras. 125 and 143), the domestic authorities had failed to take the measures that such a situation imposed (paras. 163-165). In this context, it cannot be said that the Court made statements which could affect the mother’s interest.

In conclusion, it seems that the decision not to invite the second applicant’s mother did not negatively affect her rights or interests nor prevented the Court from adopting a fully informed judgment. It was rather compliant with the principle of subsidiarity and the great caution that, as shown above, the Court should show when inviting or admitting interested third parties to participate in the Strasbourg proceedings.

The post reflects the opinions of the author, expressed in his personal capacity, and does not bind the Court or the Registry.

Image: ‘Courtroom of the European Court of Human Rights in Strasbourg’ by Adrian Grycuk (Creative Commons Attribution-ShareAlike 3.0 Poland).