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Inadmissibility Decisions of the European Court of Human Rights: A Critique

of the Lack of Reasoning

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DOI: 10.1093/hrlr/ngt044

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Human Rights Law Review Advance Access published February 7, 2014

Human Rights Law Review, 2014, 0, 1–11

doi: 10.1093/hrlr/ngt044
Recent Developments

Inadmissibility Decisions of the

European Court of Human Rights:
A Critique of the Lack of Reasoning
Janneke Gerards*

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Professor of Fundamental Rights Law, Radboud University Nijmegen, The Netherlands
*Corresponding author. E-mail: j.gerards@jur.ru.nl

K E Y W O R D S : inadmissibility decisions, judicial reasoning, European Court of Human

Rights

1. INTRODUCTION
In 2012, for the first time in many years, the case load of the European Court of
Human Rights (ECtHR or ‘the Court’) decreased.1 The single judge formation of
the Court managed to dispose of more than 81,000 applications at the admissibility
stage in one year, which helped to reduce the overall number of pending cases from
151,600 in the beginning of 2012 to 128,100 cases by the end of the year.2 The
Court’s judges and many others will have let out a collective sigh of relief for this, as
for a long time it was expected that the Court would (eventually) collapse under the
sheer weight of its case-load.3 It now seems as if the mechanisms introduced over
the past years to make the system more efficient, might prove to be effective.4
Nevertheless, there is still reason for concern. This is not only so because reduc-
ing the pressure of tens of thousands of manifestly inadmissible cases does not yet

1 For analysis of the statistics of 2012, see www.echr.coe.int/Documents/Stats_analysis_2012_ENG.pdf

[last accessed 28 October 2013].
2 Ibid.
3 See, for example, Report of the Group of Wise Persons to the Committee of Ministers, 10 November
2006, SAGES(2006) 06 EN Def, at para 28; see also Frowein, who said that ‘the days can be calculated
when the system becomes inoperable’ in Frowein, ‘The Interaction Between National Protection of
Human Rights and the ECtHR’, in Wolfrum and Deutsch (eds), The European Court of Human Rights
Overwhelmed by Applications: Problems and Possible Solutions (Berlin/Heidelberg: Springer, 2008) 51 at 52.
4 As is also suggested in the evaluation of the effects of Protocol No 14 prepared for the Committee of
Ministers of the Council of Europe; see CDDH, Report containing elements to contribute to the evalu-
ation of the effects of Protocol No 14 to the Convention and the implementation of the Interlaken and
Izmir Declarations on the Court’s Situation, 30 November 2012, CDDH(2012)R76 Addendum II.

C The Author [2014]. Published by Oxford University Press.

V
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2  Inadmissibility Decisions of the European Court of Human Rights

solve the structural causes of the case load problem of the Court.5 Just as important
is that the strong focus on speed and efficiency bears the risk of loss of quality and
transparency of judicial reasoning. Recently, this risk was very clearly pointed out by
the Human Rights Committee (HRC). In its views in the Achabal case, the HRC
found that a case that earlier had been declared inadmissible as manifestly ill-founded
by the ECtHR, on the basis that it did not find ‘any appearance of violation of the
rights and freedoms guaranteed by the Convention and its Protocols’, was actually
well-founded.6 In its findings regarding the admissibility of the communication, the
HRC expressed some serious criticism of the lack of reasoning of the Court’s decision.
The Achabal case deserves to be given attention because it raises some important
issues regarding the reasoning practice of the Court in inadmissibility decisions. This

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article will first briefly summarise the case and the HRC’s main findings (Section 2).
After discussing the main direct consequences of the HRC’s views (Section 3), criti-
cism of the approach taken by the Court is further explored (Section 4). In particu-
lar, attention is paid to the lack of reasoning in admissibility decisions and the lack of
appropriate standards in deciding whether a case is to be declared manifestly ill-
founded. In the conclusion (Section 5), the Court is invited to take the HRC’s criti-
cism seriously and work towards a better reasoning in inadmissibility decisions.

2 . T H E H U M A N R I G H T S C O M M I T TE E ’ S V I E W I N A CH A B A L V S PA I N
A. Facts of the Case
Mrs Maria Cruz Achabal Puertas, the author of the communication to the HRC, was
arrested in 1996 by the Spanish police in her home in Bilbao on the suspicion of be-
longing to an armed group. She alleged that she was punched and subjected to
threats during her transport to the Civil Guard Headquarters in Madrid. At the Civil
Guard Headquarters, she was subjected to several sessions of interrogation, during
which she was allegedly insulted, threatened with sexual abuse and by various other
means put under psychological pressure. This treatment led her to make a statement,
which she endorsed before the National High Court. At the time she did not report
the torture, allegedly because of the shock she suffered as a result of it. Several med-
ical reports drawn up afterwards stated that Achabal suffered from panic attacks, anx-
iety, difficulty sleeping, nightmares and night terrors. In April 1997 she was
diagnosed with post-traumatic stress disorder and severe depression, which was con-
firmed by a further medical report of November 1997. The various medical reports
confirmed that the disorder might be caused by what happened to her during the in-
terrogations. In January 1998, Achabal was acquitted by the National High Court of
the crime of collaborating with an armed group. It held that the charges were not jus-
tified on the basis of the statement, taking into account the psychological state of
Achabal at the time of making the statement.

5 The Court has recognized this by stressing the need to reduce the number of repetitive cases and solve the
problem of the large numbers of cases pending before a Chamber: see Preliminary Opinion of the Court
in preparation for the Brighton Conference, adopted by the Plenary Court on 20 February 2012, Vol 2 No
3841140.
6 Marı́a Cruz Achabal Puertas v Spain (1945/2010), CCPR/C/107/D/1945/2010 (2013); 20 IHRR 1013
(2013).
 Inadmissibility Decisions of the European Court of Human Rights  3

After the events, Achabal lodged a criminal complaint for torture and assault
against the Civil Guard officers who were allegedly responsible. Another forensic re-
port was commissioned by the public prosecutor, and this found that it was not clear
what event had triggered the post-traumatic stress disorder. In 2002, the investigating
judge closed the case because of a lack of objective information to support the claim
that Achabal suffered ill-treatment when she was detained at the Civil Guard head-
quarters. Her applications for reconsideration were rejected.
On 11 July 2005, Achabal lodged an application with the ECtHR, alleging a
breach of Article 3 of the European Convention on Human Rights (ECHR) for lack
of an effective investigation into her claim of torture. In 2008, a Committee of three
judges of the Court declared the application inadmissible, because they did not find

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‘any appearance of violation of the rights and freedoms guaranteed by the Conven-
tion and its Protocols’.

B. The Human Rights Committee’s View

Article 5(2)(a) of the First Optional Protocol to the ICCPR (OP-ICCPR) provides
that the HRC shall not examine any communication if the same matter is being
examined under another procedure of international investigation or settlement. This
provision clearly did not apply here, as the application to the ECtHR had already
been declared inadmissible when Achabal communicated her case to the HRC. How-
ever, Spain has made a reservation to Article 5(2)(a) to the effect that ‘the Human
Rights Committee shall not consider any communication from an individual unless it
has ascertained that the same matter has not been or is not being examined under an-
other procedure of international investigation or settlement’.7 The Spanish govern-
ment argued that the ECtHR’s inadmissibility decision implied that it had examined
the case on its merits and, for that reason, it invited the HRC to declare the commu-
nication inadmissible.
A majority of the HRC decided differently.8 It agreed with the government that
the application related to the same events as the application before the ECtHR and
that, normally, an examination by the ECtHR against the ‘manifestly ill-founded’ cri-
terion goes well beyond the examination of purely formal criteria of inadmissibility.9
It concluded, however, that in this particular case

the limited reasoning contained in the succinct terms of the Court’s letter does
not allow the Committee to assume that the examination included sufficient
consideration of the merits in accordance with the information provided to the
Committee by both the author and the state party.10

7 See treaties.un.org/Pages/ViewDetails.aspx?src¼TREATY&mtdsg_no¼IV-5&chapter¼4&lang¼en [last

accessed 28 October 2013] [emphasis added].
8 Two individual opinions are appended to the Views. A dissenting opinion was signed by six Committee
members: Mr Yuji Iwasawa, Ms Iulia Antoanella Motoc, Mr Gerald L Neuman, Ms Anja Seibert-Fohr,
Mr Yuval Shany and Mr Konstantine Vardzelashvili; a concurring opinion was signed by Mr Cornelis
Flinterman and Mr Fabián Omar Salvioli.
9 Marı́a Cruz Achabal Puertas, supra n 6 at para 7.3.
10 Ibid. (emphasis added)
4  Inadmissibility Decisions of the European Court of Human Rights

Therefore there was no obstacle to the HRC examining Achabal’s communica-

tion. Having considered the merits of the case, the HRC found that the medical re-
ports were of such a nature that, at the very least, an exhaustive investigation into the
facts was necessary and the burden of proof should not have been placed on the pre-
sumed victim. For those reasons, the HRC found a violation of the investigation obli-
gations that have been inferred from the prohibition of torture and of cruel, inhuman
or degrading treatment set out in Article 7 of the ICCPR.

3 . D I R E C T C O N S E Q U E N C E S O F T H E HU MA N R IG HT S C O MM I T T E E ’ S
V IE W IN A C H A B A L
It is readily apparent from the HRC’s views in Achabal that in cases where the

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ECtHR has already examined the case and the state has made a reservation to Article
5(2)(a) of the OP-ICCPR to the effect that such a previous examination renders a
communication to the HRC inadmissible, no such inadmissibility is accepted if the
ECtHR has not provided sufficient reasoning for its decision as to allow the HRC to
assess if the ECtHR considered it on the merits or only on purely procedural
grounds. The direct impact of the case is thus limited to those states parties to the
ECHR that have made a similar reservation to the Spanish one. For all other states,
Article 5(2)(a) already makes clear that the HRC is competent to deal with the facts
and merits of a case that has previously been examined by the ECtHR. The only limi-
tation is then that the ECtHR and the HRC cannot concurrently consider the same
case; this is no more than a temporary obstacle.11
Similar reservations to the one made by Spain have been made by seventeen other
states parties to the ECHR.12 Indeed, the Committee of Ministers of the Council of
Europe has recommended that such a reservation be made to prevent competition
between the ECtHR and the HRC and to avoid the HRC from exercising a function
of a ‘super authority’.13 For these states, the impact of the HRC’s view is consider-
able. As a consequence of the HRC’s views, it will be possible for individuals in all
eighteen states to communicate a case to the HRC after they have unsuccessfully
applied to the ECtHR. The only limitation to this is that the ECtHR must have pro-
vided more than the ‘limited’ and ‘succinct’ reasoning provided in the Achabal case,
which led the majority of the HRC to consider that it could not assume there had
been ‘sufficient consideration’ of the merits of the case. This is different from what
has previously been held by the HRC, as it has never formulated any requirements as
to the quality or extensiveness of the judicial reasoning in an ECtHR decision.14 This

11 Cf. Tyagi, The UN Human Rights Committee. Practice and Procedure (Cambridge: Cambridge University
Press, 2011) 471; see also Phuong, ‘The Relationship Between the European Court of Human Rights and
the Human Rights Committee: Has the “Same Matter” Already Been “Examined”?’ (2007) 7 Human
Rights Law Review 385.
12 For an overview of reservations, see treaties.un.org/Pages/ViewDetails.aspx?src¼TREATY&mtdsg_no
¼IV-5&chapter¼4&lang¼en [last accessed 28 October 2013]. Of the forty-seven states parties to the
ECHR, three states have not ratified the OP-ICCPR (Monaco, Switzerland and the United Kingdom).
This means that nearly half the states party to the ECHR that have also ratified the OP-ICCPR have
made a reservation similar to the one made by Spain.
13 Nowak, U.N. Covenant on Civil and Political Rights. CCPR Commentary, 2nd rev edn (Kehl: N.P. Engel,
2005) 881; see also Tyagi, supra n 11 at 472.
14 For a detailed analysis, see Phuong, supra n 11 at 392.
 Inadmissibility Decisions of the European Court of Human Rights  5

was clearly pointed out by the six dissenting members of the HRC, who stressed that
the Committee previously, in ‘long-standing’ case-law, recognised that ‘even limited
consideration of the merits’ of a case constituted an examination within the meaning
of the respective reservation and the matter therefore would need to be considered
‘the same’.15
The impact of the HRC’s new approach to the issue is reinforced by the fact that
there will be a great many cases where the new criterion of ‘lack of sufficient reason-
ing’ is met. To explain this, it must be noted first that Achabal was decided by a
Committee of three judges (‘Committee’) in 2008; that is before Protocol No 14 to
the ECHR had entered into force.16 At the time, a Committee was allowed to declare
cases inadmissible where such a decision could be taken ‘without further examin-

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ation’.17 The inadmissibility decisions from these Committees were communicated
to the parties by means of a brief letter, which merely stated the main ground for the
inadmissibility decision without offering further explanation or reasons. In the case
of Achabal, for instance, as appears from the facts set out in the communication,
Achabal was simply informed that the Committee ‘did not find any appearance of
violation of the rights and freedoms guaranteed by the Convention and its Proto-
cols’.18 At the time, moreover, the Committees’ inadmissibility decisions were not
published through the Court’s Internet database (HUDOC) or any other official
medium.
Since the entry into force of Protocol No 14 in 2010, the competences of the
Committees have changed. Committees are no longer only competent to declare evi-
dent cases inadmissible, but they may also decide on the merits of obvious cases and
declare them ‘well-founded’.19 Decisions and judgments of Committees now contain
reasons and they are published in the HUDOC database.20 Such Committee deci-
sions may be expected to be sufficiently clear to enable the HRC to decide whether
the case has been adequately examined on its merits and whether it is competent to
review the case under Article 5(2)(a) as understood in the light of relevant reserva-
tions. In all likelihood, therefore, Achabal is not very relevant to those cases decided
by a Committee of the Court after 2010.
However, the former role of the Committees of three judges is now performed by
single judges. According to Article 27 of the ECHR, single judges are competent to
declare cases inadmissible ‘where such a decision can be taken without further exam-
ination’. For the sake of efficiency, the same limitations as to the reasoning and publi-
cation of their decisions are in place as formerly applied to the Committee decisions.
Rule 33(4) of the Rules of Court stipulates that decisions taken by single judgments
are not published. Moreover, in practice the decisions of single judges are no longer

15 Referring to Communication No 1396/2005, Jesús Rivera Fernández v Spain, Admissibility, 28 October

2005, at para 6.2; and Communication No 944/2000, Mahabir v Austria, Admissibility, 26 October 2004,
at para 8.3.
16 ETS 194.
17 The notion of ‘manifest’ ill-foundedness is mentioned in Article 35(3)(b) ECHR; the competence of the
Committees of three judges was set out in Article 28 as it was formulated under Protocol 11 (see
conventions.coe.int/Treaty/en/Treaties/Html/155.htm [last accessed 28 October 2013]).
18 Marı́a Cruz Achabal Puertas, supra n 6 at para 2.14.
19 See Article 28(1) ECHR, as further elaborated in Rule 53 Rules of Court.
20 See Article 45 ECHR and Rule 33(4) Rules of Court.
6  Inadmissibility Decisions of the European Court of Human Rights

than a one-page letter stating the formal ground for rejection without further reason-
ing or argumentation.21 Although some letters may refer to purely procedural
grounds,22 in many of the about 80,000 cases disposed of by single judges each year,
the exact grounds for dismissal will remain obscure. In those cases the applicant may
be informed about the reasons for considering his application to be inadmissible in a
rather similar way as this was done in Achabal, which means the Court only provides
the main ground for its decision (for example, the case does not disclose any appear-
ance of a violation).23
Hence, the HRC’s views in Achabal are relevant for all those cases where inadmis-
sibility decisions have been taken by single judges and the complaint was brought
against a state that has made a reservation in respect of Article 5(2)(a) of the OP-

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ICCPR. Since all single judge inadmissibility decisions are similarly succinctly
phrased, they may make it difficult to find out whether it included ‘sufficient consid-
eration of the merits’ as required by the HRC.24 Thus, the HRC’s views open up an
important new judicial remedy for applicants whose complaints have been unsuccess-
ful in Strasbourg and whose complaints have been declared inadmissible by a single
judge based on extremely terse reasoning.

4 . I N D I R E C T C O N S E Q U E N C E S : I NV I T A T I O N TO RE C O N SI D E R T HE
P R A C T I C E O F R E A S O N IN G I N IN A D M IS S IB I L I T Y D E C I S IO NS
As mentioned, the most important direct consequence of the HRC’s view in Achabal
is that a possibility for re-examination is created for certain individuals who have
been unsuccessful in their applications to the Court.25 There is an even more import-
ant aspect to the views of the HRC, however, which is its barely hidden criticism of
the Court’s practice of providing limited and succinct reasoning in so many of its in-
admissibility decisions. This criticism is even more forceful given the circumstances
of this particular case, where the HRC found a relatively obvious violation of the in-
vestigation obligations related to the prohibition of torture and of cruel, inhuman
and degrading treatment. This means that the HRC not only criticized the Court for
its lack of reasoning, but also corrected its flawed assessment of the case at hand.
The HRC’s views are important for the Court, as they are related to two problematic
aspects of its reasoning in admissibility decisions. One aspect relates to the Court’s
judicial reasoning generally, the other to the specific application of the inadmissibility
criterion of ‘manifestly ill-founded’. Both aspects are briefly discussed below.

21 See Leach, Taking a Case to the European Court of Human Rights, 3rd edn (Oxford: Oxford University
Press, 2011) at 41 and 586.
22 Already before Achabal the HRC considered itself competent to examine cases which were declared inad-
missible by the ECtHR on purely formal or procedural grounds; see, for example, Pauger v Austria (716/
1996), CCPR/C/65/D/716/1996 (1999); 6 IHRR 993 (1999) at para 6.4.
23 For the general reasons for declaring an application ‘manifestly ill-founded’, see the Court’s Practical
Guide on Admissibility Criteria, www.echr.coe.int/Documents/Admissibility_guide_ENG.pdf [last ac-
cessed 28 October 2013] at paras 71–3.
24 Which is the criterion developed by the HRC: see Marı́a Cruz Achabal Puertas, supra n 6 at para 7.3.
25 Although it must be stressed, as explained in section 3, that the reasoning in Achabal is limited to those
states that have made the relevant reservation and cases in which it is unclear if they are found to be inad-
missible on purely formal grounds.
 Inadmissibility Decisions of the European Court of Human Rights  7

A. Lack of Reasoning
Extremely terse reasoning of single judge decisions and the lack of publication of
these decisions is inherently problematic. Limited judicial reasoning is certainly
understandable from the perspective of efficiency and the need to deal with the im-
mense numbers of clearly inadmissible cases the Court is confronted with. Providing
hardly any reasons at all is hard to reconcile, however, with the requirements of the
right to a fair trial and openness. Indeed, there are many judgments in which the
Court has found violations because national judgments contained insufficient reasons
and argumentation.26 It is difficult to derive a ‘minimum level’ of required reasoning
from these judgments, as the Court’s standard is flexible and allows for differences
between cases and legal systems. Nonetheless, it seems fair to expect that sending a

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one page letter that simply contains the formal reasons for rejection, without any
substantive underpinning, would not be readily acceptable under the Court’s own
case-law.
But the lack of reasoning is not only problematic because it is at odds with the re-
quirements in the ECHR and those developed by the Court itself. Judicial reasoning
is important for many different reasons. First, it allows for internal and external con-
trol. Having to write down the reasons for arriving at a certain outcome is an internal
check for a judge or other judicial officer, who needs to rationalise an otherwise per-
haps intuitive and subjective conclusion.27 Moreover, the outside world can only
know if decisions are reasonable if they are aware of the reasons why they have been
taken.28 Only if reasons are given is it possible to confirm that no inappropriate or
unwarranted reasons have influenced the judgment and if all relevant arguments and
facts have been duly taken into account. Indeed, in the case of Achabal, the HRC
was critical mainly because the Committee’s letter did not allow it to assess if the
Court had fairly and adequately examined the case, which would have been necessary
for its own determination of the admissibility of the case.29
Secondly, there are theoretical reasons to object to extremely succinct reasoning.
Sound judicial reasoning is crucial to creating a sense of fairness to both parties to a
case.30 Also, more generally, it is very important for the authority and legitimacy of
judgments.31 On a higher level of aggregation, considerations of legitimacy and pro-
cedural fairness may influence the acceptance of the Court’s role in deciding

26 For some examples, see Hiro Balani v Spain A 303-B (1994); 19 EHRR 566, at para 27; Helle v Finland
1997-VIII; 26 EHRR 159, at paras 55 and 60; Garcı́a Ruiz v Spain 1999-I; 31 EHRR 22, at para 26; Suo-
minen v Finland Application No 37801/97, Merits, 1 July 2003, at para 34; and Bugan v Romania Applica-
tion No 13824/06, Merits, 12 February 2013, at para 27.
27 See, for example, Gerards, Judicial Review in Equal Treatment Cases (Leiden/Boston: Martinus Nijhoff
Publishers, 2005) at 5–6; see also Llewellyn, The Common Law Tradition. On Deciding Appeals (Boston/
Toronto: Little, Brown and Company, 1960) at 26–7.
28 Cf., for example, Schauer, ‘Giving Reasons’ (1995) 47 Stanford Law Review 633 at 640 and 652.
29 Marı́a Cruz Achabal Puertas, supra n 6 at para 7.3.
30 See Brems and Lavrysen, ‘Procedural Justice in Human Rights Adjudication: The European Court of
Human Rights’ (2013) 35 Human Rights Quarterly 176.
31 For example, Fiss, ‘Objectivity and Interpretation’ (1982) 34 Stanford Law Review 739 at 756; Farber and
Sherry, ‘Building a Better Judiciary’, in Klein and Mitchell (eds), The Psychology of Judicial Decision Making
(Oxford: Oxford University Press, 2010) 285 at 292; and Cohen, ‘Reason Giving in Court Practice:
Decision-Makers at the Cross-Roads’ (2008) 14 Columbia Journal of European Law 257 at 259.
8  Inadmissibility Decisions of the European Court of Human Rights

fundamental rights cases.32 If only for those reasons, it would be desirable for the
Court to pay more attention to the reasoning of its decisions, even in clearly unmeri-
torious cases.33

B. The Manifestly Ill-founded Criterion

Another problematic element disclosed by the Achabal case is related to the nature
of the admissibility criteria set out in the ECHR. Most admissibility criteria are of a
rather formal or procedural nature. According to Articles 34 and 35 of the ECHR,
for example, an application must be submitted within six months after exhaustion of
the last available domestic remedy, the application must not be anonymous, it must
concern a right protected under the ECHR, and so on. These criteria may present

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difficulties of interpretation and they may raise controversies; generally, however,
they are relatively straightforward and their application is easily understood, espe-
cially now that the Court has detailed their exact meaning in an extensive body of
case-law.34
The situation is different for another important admissibility criterion: that con-
tained in Article 35(3)(b) of the ECHR. According to this provision, an application
is inadmissible if it is manifestly ill-founded. This criterion is not formal, but rather
substantive in nature, to the extent that its application requires a prima facie assess-
ment to be made of the merits of the case.35 From an efficiency perspective this
criterion is very useful. It allows an easy way out if yet another clearly unmeritorious
complaint is brought on a topic where the Court has already held that the facts do
not disclose a violation of the Convention, or in cases in which the Court is obvi-
ously used as a ‘court of fourth instance’.36
However, in many cases, the difference between inadmissibility review and review
on the merits is difficult to observe. Indeed, the Court has admitted as much in its
Admissibility Guide, in which it is stated: ‘The reasons given for the inadmissibility
decision in such a case will be identical or similar to those which the Court would
adopt in a judgment on the merits concluding that there had been no violation’.37 In
fact, many important cases result in inadmissibility decisions, as is apparent from
their being ranked as ‘importance level 2’ by the Court.38 An example of such a case
is Staatkundig Gereformeerde Partij v The Netherlands, which concerned a national ju-
dicial decision to the effect that a political party was forced to accept women as can-
didates for representative functions, even though it held religious objections to
this.39 This case caused intense legal and political debate in the Netherlands and it

32 See Brems and Lavrysen, supra n 30; cf. Dworkin, A Matter of Principle (Cambridge: Harvard University
Press, 1985) at 329.
33 See also Brems and Lavrysen, supra n 30 at 186.
34 For an overview, see the ECtHR’s Admissibility Guide, supra n 23.
35 Cf. Admissibility Guide, ibid. at 68ff.
36 For these uses, see Admissibility Guide, ibid.
37 Ibid. at para 370.
38 The Court itself classifies the importance level of its judgments and decisions: importance level 2 refers
to ‘judgments, decisions and advisory opinions which, whilst not making a significant contribution to the
the case-law, nevertheless go beyond merely applying existing case-law’. For more information see:
www.echr.coe.int/Pages/home.aspx?p¼caselaw/HUDOC/FAQ [last accessed 5 November 2013].
39 Application No 58369/10, Admissibility, 10 July 2012.
 Inadmissibility Decisions of the European Court of Human Rights  9

disclosed a conflict of fundamental rights that had not yet been decided on by the
Court. It was therefore rather unexpected and surprising that the Court declared the
case manifestly ill-founded, instead of providing a full consideration of its merits.
Similar examples are the case of Neij and Kunde Kolmisoppi v Norway, concerning a
conflict between the right to receive and impart information and the right to intellec-
tual property in relation to the Pirate Bay,40 or the case of Peruzzo and Martens v
Germany,41 regarding taking DNA of convicted prisoners to store it in a DNA data-
base. These cases are clearly not straightforward and easy; they concern important
legal issues and issues of great general importance. Unfortunately, the Court has
never explained why it relies on the manifestly ill-founded criterion in such cases and
which standards help it decide when and why a case is manifestly ill-founded. The

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Court’s recent guide on admissibility does not offer much clarification in this respect;
as mentioned, if anything, it confirms that the Court’s review of whether an applica-
tion is manifestly ill-founded is almost identical to a ‘regular’ review on the merits.42
The lack of clarity on the application of the manifestly ill-founded criterion is
problematic for several reasons. First of all, even if it seems that the net result of find-
ing inadmissibility or a non-violation is similar for the applicant, from a legal perspec-
tive it makes a difference. Although the differences are mainly relevant in respect to
cases decided by Chambers, it is worth noting them. If a case is declared inadmis-
sible, the decision does not disclose the number of judges constituting the majority,
nor is there a possibility for the judges to write separate opinions.43 This is different
for judgments, where information about the judges voting behaviour is standardly
provided and judges are always entitled to write separate opinions.44 Although this is
a formal difference, it is of some importance, as the judges’ voting behaviour and
their separate opinions may disclose relevant information about the way the Court
will decide in future cases. Moreover, the possibility to request a referral of a case to
the Grand Chamber is open only in respect to ‘judgments’, not in respect to ‘deci-
sions’.45 Admittedly, it is far from certain if the case will actually be reconsidered by
the Grand Chamber, since a panel of five judges will carefully select only those cases
raising important interpretative issues or questions of general importance.46 None-
theless, it is important that the possibility of review by the Grand Chamber is

40 Application No 40397/12, Admissibility, 19 February 2013.

41 Application Nos 7841/08 and 57900/12, Admissibility, 4 June 2013. This case was the more surprising as
the Court expressly deviated from judgments in other cases regarding similar issues, including a Grand
Chamber judgment (for example, S. and Marper v United Kingdom 48 EHRR 50; and M.K. v France Appli-
cation No 19522/09, Merits, 18 April 2013). This would justify the expectation that the Court would ac-
tually assess this case on its merits.
42 Supra n 23, for example, paras 370 and 372.
43 Rule 56(1) Rules of Court.
44 Article 45(2) ECHR and Rule 74 Rules of Court.
45 Article 43 ECHR. Chambers can also relinquish jurisdiction to the Grand Chamber under Article 30
ECHR.
46 Article 43(3) ECHR and Rule 73 Rules of Court; see also Costa, ‘Les arrêts de la Grande Chambre
rendus après renvoi’, in Caflisch, Callewaert, Liddell, Mahoney and Villiger (eds), Human Rights – Stras-
bourg Views. Liber Amicorum Luzius Wildhaber (Kehl: N.P. Engel, 2007) 133; and Wildhaber, ‘La Grande
Chambre de la Court Européenne des Droits de l’Homme’, in La conscience des droits. Mélanges en l’hon-
neur de Jean-Paul Costa (Paris: Dalloz, 2011) 686.
10  Inadmissibility Decisions of the European Court of Human Rights

non-existent in the case of admissibility decisions. This is true even if there are good
reasons to reconsider the case, for example, because the decision results in inconsist-
ent case law or raises important questions of interpretation. If only for that reason, it
would be important to know in what situations the Court decides to use the criterion
of Article 35(3)(b) and what standards it employs to arrive at the conclusion that a
case is manifestly ill-founded.
An even more important problem related to the manifestly ill-founded criterion is
apparent if one considers that not only the Chambers can rely on this criterion, but
also the Committees and single judges. Without providing substantive reasons, a sin-
gle judge can hold a case inadmissible because he finds that it has insufficient merit.
It is very likely that this is indeed the criterion that was applied by the Committee in

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the case of Achabal. Indeed, the Court itself mentions in its guide on admissibility
that ‘[t]he majority of manifestly ill-founded applications are declared inadmissible
de plano by a single judge or a three-judge committee’.47 This means that a single
judge may make a full assessment of the merits of the case and arrive at conclusions
as to the reasonableness or proportionality of an interference with a Convention
right, without giving any reasons for this and without there being any possibility for
reconsideration or appeal.

5. CONCLUSIONS
The view of the HRC in the case of Achabal pinpoints a problematic element in the
case-law of the ECtHR. The lack of clarity as to the precise standards to be applied
when deciding if a case is ‘manifestly ill-founded’, combined with the lack of reason-
ing in cases disposed of by single judges, make it very difficult to know and under-
stand why certain cases have been dismissed. This can be criticised from a
perspective of legitimacy, procedural fairness, internal and external control and pro-
tection of reasonable standards of a fair trial. Perhaps this would not be so bad if one
could be confident that the Court never makes mistakes and always takes the right
decisions. The Achabal case is worrying, however, for clearly showing that such confi-
dence would be misplaced: even the European Court of Human Rights may some-
times make a wrong assessment of the facts.
It would be wise for the ECtHR to take the message of the Achabal seriously. Effi-
ciently and quickly disposing of unmeritorious or manifestly inadmissible cases cer-
tainly is important. Providing for sound judicial reasoning to enable outsiders to
assess the quality and reasonableness of the Court’s judgments, however, should be
an equally important consideration. That is even more pertinent now that such deci-
sions are not only based on purely formal and procedural grounds, but may actually
be based on an assessment of the merits of the case.
An improvement could be made by clarifying the phrase ‘manifestly ill-founded’,
which presently is an enigma. If the Court was to state much more precisely in what
types of situations the criterion applies and ensure more consistent application of the
criterion, it would perhaps be easier to predict if and why the criterion would be
used, even without elaborate reasoning in that particular case. Even then, however, as

47 Supra n 23 at para 350.

 Inadmissibility Decisions of the European Court of Human Rights  11

pointed out in the separate opinion of HRC members Flinterman and Salvioli,
the application of this requirement by a single judge needs to be more detailed
and understandable. As long as that is not the case, the safety net woven by the
HRC is essential. From a perspective of judicial protection of human rights, it is valu-
able that at least some kind of remedy is available to those whose cases have been
dismissed in Strasbourg, without their being able to find out and understand why.

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