Statelessness and Filing Lawsuits at the European Court of Human Rights in the Light of International Instruments

Document Type : Original Independent Original Article

Authors

1 PhD Student in Private Law, North Tehran Branch, Islamic Azad University, Tehran, Iran.

2 PhD student of International Law, Department of Public and International Law, Faculty of Law, Theology and Political Science, Science and Research Branch, Islamic Azad University, Tehran, Iran.

Abstract

The European Court of Human Rights (ECtHR) was established in 1959 as a supervisory institution of the European Convention on Human Rights to inspect lawsuits that fall under the jurisdiction of this court per this Convention and the Protocols annexed thereto. One of the characteristics of this court, which was established following the ratification of Protocol No. 9 of the Convention, is the ability for individuals to file lawsuits against states that are members of this Convention. The Convention and Protocols, when examined, do not specifically state that stateless individuals may file lawsuits, regardless of the case’s subject. Moreover, this court does not have jurisdiction over the issue of nationality. Accordingly, the question that arises is how stateless individuals can file lawsuits at the ECtHR, and can special cases of statelessness be brought to this court, given that the concept of nationality is not within the subject-matter jurisdiction of the court. It appears that this court does not have the authority to investigate matters related to statelessness, but that does not prevent it from doing so in relation to lawsuits brought by those who are stateless. A descriptive and analytical investigation into the ECtHR’s subject-matter jurisdiction discovered that, in addition to the court’s jurisdiction to investigate lawsuits by stateless individuals, special cases of statelessness such as denationalization imposed by states as degrading punishment can be included within the court’s jurisdiction.

Highlights

One of the objectives of the Council of Europe is to support human rights and democracy. The European countries established this council in 1949 to promote cultural, social, and political life in Europe, and it ratified the European Convention on Human Rights in 1950 to accomplish this goal. The ECtHR was founded in 1959 as a supervisory institution of the European Convention on Human Rights to support the victims of a violation of human rights by the member states. The jurisdiction of this court was determined per Articles stated in the European Convention on Human Rights, and its jurisdiction was later expanded by ratifying addendum protocols. As a result, the subjects within the jurisdiction of this court are related to violations of the rights guaranteed by this Convention and the Protocols attached to it. The member states have the right to bring legal actions against other states in accordance with the European Convention on Human Rights. However, if the defendant is a member state and has approved Protocol No. 9, individuals are permitted to file lawsuits against states under that Protocol. Concerning the filing of a lawsuit against the member states, it should be noted that the individuals do not have to be nationals of the member states and could be nationals of other non-member countries or even non-European countries. This article titled “Statelessness and Filing Lawsuits at the European Court of Human Rights” is descriptive-analytical research and it addressed two questions.

First, can stateless individuals file lawsuits at the ECtHR? It was assumed that the ECtHR’s lack of jurisdiction in investigating lawsuits involving statelessness does not prevent them from investigating complaints lodged by stateless individuals.

To answer this question, the European Convention on Human Rights and its Protocols should be studied to see if they have specified whether or not stateless individuals are allowed to file lawsuits. Following an examination of these instruments, it was determined that neither the Convention nor its Protocols emphasized the filing of lawsuits by stateless individuals. Furthermore, neither of them explicitly stated that it was impossible. However, it results in two different interpretations of some of the Convention’s Articles and Protocols.

According to one viewpoint, the term “individuals” is used in its broadest sense in various sections of the Convention and its Protocols. Article 34 of the Convention, for example, uses the term “any individual” and states that the court may proceed with any lawsuit filed by “any individual.”  Article 3 of the Protocol No. 9 uses the term “individuals”, due to which merely the superior parties of the Convention, Commission, “individuals”, etc. can file lawsuits at the court. Accordingly, the term “individual” is used without adverb in these Articles, implying that its authors intended for every individual to have access to this court.

According to the second opinion and interpretation, it can make it difficult for stateless individuals to file lawsuits. The conditions for hearing a dispute in court are outlined in Article 35 of the Convention. One of the conditions is that individuals who file a lawsuit at this court should not be “unknown” and “unidentified”, which is explicitly stated in Clause 2(A) of this Article. It can be stated that this Paragraph of Article 35 is an exception made for Articles 34 of the Convention and 3 of Protocol No. 9.

The question is whether nationality is regarded as a part of an individual’s identity to the extent that statelessness can cause an individual to be regarded as unidentified. In other words, are stateless individuals considered unknown under Article 35 (2A) of the Convention?

Even though the domestic laws or judicial procedures of countries have taken a specific stand in describing the term “unknown”, in its procedures, the ECtHR demonstrated that it does not follow the domestic rules and procedures of countries in defining the terms and interpreting them, and it follows the autonomous concepts rule in this regard. Thus, considering the generalization of some terms used in Articles of the Convention, the lack of a special adverb and description, as well as using two methods, i.e., contextual interpretation and subject-based interpretation, it was concluded that stateless individuals can file lawsuits at the ECtHR, even though this right is not specified in the Convention and Protocols thereof.

The second question to consider is whether it is possible to file a lawsuit at the ECtHR in special cases of statelessness, despite the subjective exit of statelessness from court jurisdiction. In other words, is denationalization as a result of punishment included in the court’s subject-matter jurisdiction? According to the first hypothesis, because the court lacks jurisdiction to investigate lawsuits involving statelessness, it cannot investigate any cases of statelessness.

Examining the ECtHR’s judicial procedures in applying the dynamic interpretation rule, it was found that because the European Convention on Human Rights and its Protocols are dynamic and living documents, they should be interpreted in accordance with current developments and situations in the international community. In addition, the International Human Rights Instruments emphasize the subject of nationality and the right to nationality of individuals and prohibits any action that can lead to the statelessness of individuals. Furthermore, a common standard can be found among them when taking into account the efforts made by the international community to reduce the phenomenon of statelessness. Accordingly, in today’s world, the right to nationality is regarded as one of the fundamental human rights that cannot be revoked, and depriving this right is regarded as an inhumane and degrading punishment. Therefore, According to the above documents and reasoning, the author believes that if a person becomes stateless as a result of the punishment administered by their country, that person can file a lawsuit at the ECtHR due to the violation of Article 3 of the European Convention of Human Rights, which establishes that “no one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment”.

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