To what extent can it be held that the ECHR's interpretation of the concept of victim comes close to "actio popularis"?

Résumé du document

The European Convention of Human Rights was adopted in 1950 by the members of the Council of Europe, in order to prevent atrocities of the Second World War to happen again and to protect human rights. States as well as individuals were entitled to lodge an application in front of the European Court of Human Rights, created in 1959, to complain about a violation by a member State of one of the rights protected by the Convention. However, some admissibility criteria are required for an application to be admissible. According to the article 34 of the Convention “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto".

So, one of the admissibility criteria is the « victim status » of the applicant. It permits of course to reduce the great number of unfounded applications that obstruct the Court and which is increasing since 1998, when the Court became permanent the right to individual petition is compulsory for each contracting state. But its goal is also to avoid “actio popularis”, which is a judicial action by in individual to challenge national law when he is not the victim, to obtain remedy and redress for the collective interest

Extraits

[...] But we could criticize this new criterion that will probably lead the Court to restrain its interpretation of the victim. The Protocol 14 has introduced several ways to reinforce the efficiency of the Court machinery (such as the single-judge system or the new role of Committee) and this one may not have been the best because it could lead the Court to disregard important cases, even with the two safeguards. To conclude, we can argue the Court have decided to enlarge the scope of the victim concept in order to protect more efficiently human rights and as a consequence, has introduced new wider concepts of victim. [...]

[...] As a result, such an evolution of the victim status could have advantages as well as drawbacks. This is the reason why the Court has to find the right balance between both but we can observe that in fact the Court has deal with this problem very efficiently. B. The Court, aware of the potential drawbacks, has actually been regulated the new concept of victims and granted them only under very precise circumstances in order to avoid the potential drawbacks and to keep only the advantages Concerning the potential victim, the requirement is that the applicant must prove that he might be the victim of the violation alleged. [...]

[...] It has stated in case Gorraiz Lizzaraga and Others vs Spain (2004, paragraph 38) that the victim criterion can “evolve in the light of conditions in contemporary society” and “must not be applied with excessive formalism”, which means that the Court may sometimes adopt a wide interpretation of the status of victim according to the merits of the case (which has been confirmed in the case Silidin vs France paragraph 63). Moreover the concept of victim does not mean that the existence of a physical injury is required (case Marckx vs Belgium paragraph 27) and sometimes emotional damages are sufficient to consider the applicant as a victim. As a result, he Court has used this possibility to interpret the term of the Convention to widen the interpretation of the notion of victim. C. [...]

[...] But the concept of potential victim can also be used for applicants who might be affected in the future. Indeed, Court also considered the possibility that an applicant who has not yet been victim of a violation might be a victim in the future and might have a future interest. The Open Door and Dublin Well Women vs Ireland case (1992) is a case in point. The applicants were women complaining against a law prohibiting information on abortion rights, even if they were not pregnant, and the Court decided that any woman in age to be pregnant could be considered as a victim because they “belong to a class of women of child-bearing age which may be adversely affected by the restriction imposed by the injunction and ( ) risk of being directly prejudiced by the measures complained As a result the Court concluded that these women were not challenging national laws but had real interests to apply. [...]

[...] The wife of the dead victim was considered as indirect victim because it concerned inheritance rights. Moreover, it has been decided by the Court that close relatives of the dead person could apply if it considers a violation of article 2 (case Bic and Others vs Turkey, 2006). If the death is the direct result of the alleged violation, the application can be examined, as in the case X v France (1991), in which someone who gave its blood was infected by the HIV and his parents continued the application, which was not dismissed because the death was related to the application. [...]