European Convention of Human Rights: A 2024 case of the “very essence of the right of access to a court impaired” (ZOUBOULIDIS v. GREECE (No. 3), Strasburg, 4 June 2024)
“In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law.” (Winston Churchill, August 1949, speaking in favour of a human rights convention in Europe)
The idea for the creation of the European Convention of Human Rights (“ECHR”) was proposed in the early 1940s while the Second World War was still raging across Europe. It represented Europe’s promise to itself and to the whole world of ‘never again’. Its purpose has always been to ensure that governments would never again be allowed to dehumanise and abuse people’s rights with impunity. The ECHR came into full effect on 3 September 1953. It was intended to be an uncomplicated recap of universal rights, whose meaning could grow and adapt over time to reflect society’s changing needs. The purpose was also seemingly uncomplicated: to protect ordinary people from abuse by the state and, at the same time, to place duties on the state to protect individuals.
The creation of the ECHR led to the establishment of the European Court of Human Rights in 1959, based in Strasbourg, France. The Court exists to safeguard the ECHR and oversee the implementation of the Convention in the 46 Council of Europe member states, providing a forum for individuals to bring complaints of human rights violations to Strasburg once all possibilities of appeal have been exhausted in the member state concerned. The ECHR protects the rights of more than 700 million people in Europe. Judgements of the Court legally bind countries to stand by its rulings. The resulting case-law makes the ECHR a powerful ‘living instrument’; decisions taken by the European Court of Human Rights have influenced the laws and practices of governments across the entire continent.
Οn the 4th June 2024, in the case of ZOUBOULIDIS v. GREECE (No. 3), the European Court of Human Rights published a decision that is expected to greatly influence both the laws and practices of European governments. The Third Chamber of the European Court of Human Rights created extremely important case-law regarding the liability of the public sector for compensation owed to an individual for damage suffered as a result of manifest error on the part of the judiciary. In some ways, the decision confirms what most of us would accept as ‘obvious’: members of the judiciary are part of the public sector and, when they commit a manifest error, the public sector is liable to pay compensation to the person adversely affected. Yet, something as obvious as that had to be fought for at the European Court of Human Rights. How could this be?
In 2021, the Plenary Session of the Council of State (the highest administrative court in Greece), in its decision 800/2021, held that claims against the Greek State for damage caused by acts of judges are “not actionable in court” until such matter became addressed specifically and expressly by new legislation. On appeal to the European Court of Justice, Mrs V Skordaki (representing the applicant) argued that the Greek Council of State in declaring as “not actionable in court” a compensation claim arising from the manifest error of a member of the judiciary, had committed a violation of Article 6 para. 1 of the ECHR, namely a violation of the right of access to an independent and impartial tribunal. This was indeed held by the Court in this case.
With this decision of the European Court of Human Rights, we now have a profound and, at the same time, absolute reversal of until now unchallenged judicial practices in Greece, as epitomised in the 2021 decision of the Plenary Session of the Greek Council of State mentioned above. Similar questionable practices are likely to be encountered elsewhere in Europe too. As legal practitioners, we are called to play our part to question any shift in jurisprudence that hinders access to justice or blocks it altogether. In that respect, the European Court of Human Rights must be considered as an appropriate appeal forum where the particulars of the case indicate, as in this case, that the local court’s interpretation results in an applicant’s claim “not being eligible ad infinitum for judicial review”, thus constituting “an insurmountable obstacle to any future attempts of the applicant to claim compensation from the State for the alleged errors of the civil courts until the eventual adoption of new legislation” (ZOUBOULIDIS v. GREECE (No. 3), par 80).
The decision in the case of ZOUBOULIDIS v. GREECE (No. 3) restores citizens’ faith in the Constitution which “does not tolerate that someone who suffers damage caused by the actions of a state organ remains uncompensated” (CoE 2527/2019), even if the organ that caused such damage is a member of the judiciary.
Below is the summary of the European Court of Human Rights judgment, as published by the Court itself.
Art 6 § 1 (civil) • Access to court • Applicant’s action against the State for damage allegedly caused by the Court of Cassation’s rejection of his appeal on points of law, found by the Court in Zouboulidis v. Greece (77574/01) to have breached Art 6 § 1, declared inadmissible for lack of jurisdiction by the Supreme Administrative Court (SAC) • Domestic law on State liability interpreted by the SAC as not allowing claims of damage caused by a manifest error on the part of a judicial body until the enactment of specific legislation regulating such liability • SAC’s interpretation not in line with its previous case-law applying current domestic law by analogy to such cases in view of the absence of specific legislation and resulting in a first-time inadmissibility finding in applicant’s case • No indication of any perceptible line of case-law development departing from SAC’s previous interpretation • New interpretation resulted in applicant’s claim not being eligible ad infinitum for judicial review and constituted an insurmountable obstacle to any future compensation claims by him against the State for the alleged errors of the civil courts until the eventual adoption of specific legislation • Restriction on applicant’s right for an undetermined period creating legal uncertainty to his detriment • Disproportionate burden imposed on the applicant • Very essence of the right of access to a court impaired.