81001452

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オウシュウ ジンケン ジョウヤク ニ オケル ジュリ カノウセイ シン キジュン ソウトウナ フリエキ ノ ソウセツ ト ジンケン サイバン キノウ ノ ハッテン

The "Significant Disadvantage" as a New Filtering Criterion for Admissibility Tests under the ECHR

国際協力論集

17(1)

117-130

神戸大学大学院国際協力研究科

2009-07

2009-08-12

After discussion for several years, the Protocol 14 to the European Convention on Human Rights was adopted and opened for ratification in May 2004. The Protocol's focus is on the further functioning of human rights protection mechanism after drastic reform done by the Protocol 11. One of the changes, as much more controversial one, is the addition of a new admissibility criterion for individual applications to Article 35 of the Convention. The new criterion as "significant disadvantage" could not be accepted unanimously among the High Contracting Parties because of its ambiguity in interpretation. This new criterion has, indeed, been prevented from using for two years following the Protocol 14 has come into force, because the European Court needs enough time to elaborate its case-law on the meaning of "significant disadvantage". New Article 35 paragraph 3(b) which articulates the new criterion has safeguard clauses. It will never be possible for the Court to reject an application on account of its trivial nature if the case has not been duly considered by a domestic tribunal. It is designed that, even a less damaged case cannot be dismissed if it contains serious questions affecting the application or interpretation of the Convention or important questions concerning national law. However, it is unlikely to be an easy task to develop clear-cut jurisprudence for the Court, even the Protocol could come into force by the Russian ratification. In particular, its decision on whether the case is "duly considered" by a domestic tribunal cannot but be controversial and uncertain, even the new criterion would be a reflection of subsidiary. The European Court is shifting its function, from the remedial organ for individual victims, towards the "constitutional" court. In circumstances where the Parties are obliged to implement the case-law in their domestic courts (otherwise the Parties are acknowledged violations), taking initiatives to build up the caselaw as it serves the national interest.

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