Case Watch: the ECHR deploys the “significant disadvantage” criterion in a criminal case

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.

The 47 member states of the Council of Europe have just completed their Brighton conference on reform of the European Court of Human Rights, with attention focused in part on the question of how best to reduce the court's backlog of cases and its excessive workload. A few weeks earlier, the court itself had taken another step along the same road, when it handed down its first decision applying its “significant disadvantage” admissibility criterion to a criminal matter.

This criterion was introduced under the European Convention on Human Rights' Protocol 14, itself the result of a previous round of reform, which has been in effect since June 1, 2010. It states that an individual application can be rejected by the court if “the applicant has not suffered a significant disadvantage, unless respect for human rights… requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.” [Protocol No. 14. § 12 (b)]

The case, Gagliano Giorgi v. Italy, concerned an Italian national who was convicted of forgery and sentenced to one year’s imprisonment. However, the domestic proceedings relating to his case took over 16 years. It took more than 10 years to reach a final judgment in the criminal proceedings, as along the way several charges were re-classified, and as a result of those delays some of the offences were dismissed as time-barred. When Gagliano Giorgi attempted to seek redress for the Italian courts’ failure to deliver a final judgment within reasonable time through the Pinto procedure, which was introduced specifically for this purpose, he spent another 5 years waiting—this time for the Pinto decision. Eventually his claim for compensation remained unsuccessful, and the court went as far as stating that actually it was in Gagliano Giorgi’s interest to prolong the proceedings so that the offences he was charged with would become time-barred.

Gagliano Giorgi turned to the European Court alleging article 6 (1) (fair trial guarantees) violation on three grounds.  He complained of the excessive length of both the main criminal proceedings and the Pinto procedure. He also complained of the ultimate ineffectiveness of the Pinto procedure to provide redress, arguing that this excessive duration combined with the stringent, thus overly restrictive, compensation criteria prevents the Pinto procedure from being an effective remedy contrary to article 13 requirements of the Convention.

The main point of interest in this decision is how the European Court applied the “significant disadvantage” test to alleged violations of core criminal defence rights (most previous cases have been about small property claims, for sums between 1 and 90 euros).  As to the excessive length of proceedings claim, the court was satisfied of this question having been examined on three occasions by various domestic tribunals, thus it was found to be duly considered on national level. The court took a pragmatic approach:  the excessive duration of the proceedings had led to the most serious charge (bribery) being dismissed as time-barred, resulting in a significant reduction in Gagliano Giorgi’s sentence.

The court reasoned that this “had offset or reduced the damage that would otherwise have been caused by the excessive duration of the proceedings.” As a result, the court came to the conclusion that Gagliano Giorgi did not suffer any significant disadvantage and, therefore, found the claim on this ground inadmissible. This understanding reflects an underlying ECHR principle that “the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective” (Airey v. Ireland para. 26)

However, this was not the end of the matter. The court also examined the duration of the Pinto proceedings and pointed out that as a default rule these should not exceed two years and six months. The five-year long proceedings in Gagliano Giorgi’s case, therefore, amounted to an article 6 (1) violation. But this shortcoming was not sufficient enough to call into question the effectiveness of this remedy as a whole.

The court has been phasing in the implementation of the “significant disadvantage” test, but it is now approaching the end of its “transitional period” (1 June 2010-2012), during which only its trial chambers and the Grand Chamber can apply the new admissibility criterion. As we move towards broader application of the test in the coming months, the present ruling suggests that the trial chambers may be establishing the guiding principles for future “significant disadvantage” admissibility decisions.

Gaglioni Giorgi v. Italy shows that the court intends to make full use of its existing tools in its effort to reduce its caseload; however, it faces the challenge how to foster prompt adjudication of large number of cases while ensuring that not one meritorious application is filtered out in the process. The court is under great (and legitimate) pressure to reduce its backlog by 2015; however, this pragmatic objective should be met while maintaining its high professional standards as the premier human rights tribunal in Europe.

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