Erga omnes effect following new case-law of European Court of human rights

Abstract

In 1978, the European Court of human rights first applied the doctrine of perceiving the Convention for the Protection of Human Rights and Fundamental Freedoms [1] as a «living instrument» for the protection of human rights [2].

The doctrine provides for the right of the ECHR to change its case-law when considering cases, independently of the existence of other practice in similar cases in the past.

The purpose of existence of the above doctrine is the development of mechanisms for the protection of human rights.

The key decision against Ukraine, in which the European Court of human Rights applied the doctrine of perceiving the Convention for the Protection of Human Rights and Fundamental Freedoms [1] as «living instrument» for the protection of human rights, is the case of Pichkur v. Ukraine [3]. In this case, the ECHR noted that the above convention should be interpreted «in the light of present-day conditions».

This is the way of case-law of the European Court of Human Rights appears, which may not correspond to the previous practice of the ECHR.

Existing case-law includes cases where a national court passes a verdict in a criminal case, and later case-law the European Court of human rights appears in a case under similar circumstances, but with different conclusions.

Moreover, there are situations where a court  adopt a verdict in a case against several defendants, and later the European Court of human rights makes a positive decision on one of the convicted.

Current legislation contains a norm that allows a convicted person to apply to the court with an application for revision of the verdict based on the decision of the European Court of human rights [4]. However, this norm applies exclusively to the person in whose interests the decision was adopted by the European Court of human rights.

So persons in respect of whom the European Court of human rights did not adopt a personal decision are deprived of the right to review the verdict, despite the appearance of new ECHR’s case-law.

Thus, the ECHR’s case-law does not apply to all interested persons.

The erga omnes effect in international law is the principle of spreading the norm to all subjects.

So violation of the erga omnes effect regarding the rules for applying the case-law of the European Court of human rights exists.