Equality in the Access to the ECtHR—Filling Procedural Gaps Concerning Locus Standi and Representation of Extremely Vulnerable Individuals

Abstract

Under Article 34 ECHR only alleged victims of human rights violations have standing for lodging applications with the ECtHR. The admissibility ratione personae requirement and the procedural rules established under the Rules of Court do not regulate the access to the Court for those victims who are not de jure and/or de facto capable of lodging applications. The Court is striving to fill such a procedural lacuna through the so-called “extreme vulnerability test”, by taking into account the victims’ incapacity and the seriousness of the alleged violations. In those cases, provided that several other conditions are fulfilled, NGOs are allowed to apply on behalf of extremely vulnerable victims, in their capacity as “de facto representatives”. The Court’s approach, however, is grounded on the (alleged) exceptional circumstances of each specific case and does not guarantee predictability and legal certainty. Moreover, some of the conditions (in particular, the recognition of the alleged de facto representative’s locus standi in the domestic proceedings coupled with the need for direct contact between the victim and the representative) appear unjustified and raise issues of conformity with the ECtHR’s case-law. The present chapter examines the Court’s approach and proposes some interpretative correctives in the light of the principle of substantive equality in the access to (international) justice, also with the aim of harmonizing the ECHR system with other universal and regional human rights systems.