Third-Party Intervention: understanding its importance
On 20th of March, 2023, European Convention of Human Rights (ECtHR) has amended new Rules of Court in which it has clarified and updated the practice of third-party intervention. Before that, the combined case between Ukraine and the Netherlands v. Russian Federation (Ukraine and the Netherlands v. Russian Federation, nos. 8019/16, 43800/14, 28525/20, 11055/22) and the conflict in eastern Ukraine that started in 2014 was the subject of a Court announcement that 26 member states will intervene.
The ECtHR primarily relies on the information given by the parties involved in procedure before it, which might only sometimes include all the key aspects and legal arguments about a particular case. In addition, the parties might also need more proof to support their claims, such as up-to-date statistics/data or other relevant information. Due to these limitations, the ECtHR is open to third-party interventions to enhance its deliberations and provide additional context for its judgments. As a result, third-party intervention has proved immensely important in promoting and protecting individuals' fundamental rights and freedoms. In this blog, I will analyze recent changes introduced and their importance in understanding a how third-party intervention has helped to shape the current human rights discourse.
Legal framework and recent changes in third-party intervention
A third-party intervention in accordance with Article 36, paragraph 2 of the European Convention of Human Rights allows the ECtHR to take into account the views of high contracting parties and other persons who are not parties to a case, but the intervention ought to be pertinent, timely, and add value to the proceedings.
It should be noted that the purpose of third-party intervention in the ECtHR is to provide information to assist the Court in deciding of case. This type of intervention is often referred to as "amicus curiae" or "friend of the court." A third-party should objectively present legal views and analyses of the relevant law. Typically, third-party interventions are made in cases that have the potential to set important legal precedents and impact more than just the immediate parties involved. This information enables the Court to reach more thorough and informed judgments based on a deeper comprehension of the state of human rights in a given nation or region. Thus, the goal is to encourage the development of case law and to improve the ECtHR's transparency and accountability. In addition, the Court can demonstrate that it is committed to openness and diversity by enabling third parties to provide input during into the decision-making process.
Recently, the ECtHR updated the Rules of Court to reflect changes to Rule 44 sections 2 and 3(b) regarding third-party intervention. These revisions provide new rules for third-party interveners, explaining the function of third-party intervention. Moreover, the President of the Court may allow individuals, Non-Governmental Organizations (NGOs), or high contracting parties other than those against which the application has been filed to participate in the proceedings before the Grand Chamber of the ECtHR. It should be noted that the new rules provide for a simplified procedure for third-party intervention, which is intended to reduce the administrative burden on the Court and to ensure that third-party interventions are dealt with promptly. A more flexible approach to the admission of third-party interventions is also provided by the revised regulations, enabling the Court to consider the particular circumstances of each case. The Court may now evaluate the third party's intervention's applicability to the case, its possible impact on the proceedings, and the extent to which it is likely to benefit the Court.
It is worth noting that requesting permission to intervene requires a brief submission in English or French, which will be 2-3 pages at maximum. It should include the following information: an introduction of the third party, their goals, and activities; third party's interest in the case; specific details on how the third party will contribute to the case and why it would benefit the administration of justice; This type of arrangement holds significance as it enhances the flexibility of third-party intervention mechanism while rendering it more explicit and understandable.
Third-party intervenors could be any person concerned who is not the applicant but is affected by the case's outcome or has a legal interest in the latter. The phrase "any person concerned" can include a variety of entities, such as NGOs, academics, private citizens, businesses, other international organizations, bodies of the Council of Europe, and independent national human rights institutions. These entities are usually interested in intervening to provide information that may help the Court and promote the "interests of the proper administration of justice."
NGOs and civil society organizations, primarily those who advocate for the protection of human rights and the improvement of democratic institutions, have been instrumental in monitoring and documenting human rights abuses and violations, which can help provide evidence to support third party intervention. As such, their involvement in third party intervention can enhance the effectiveness and transparency of the process and contribute to its legitimacy and credibility.
Moreover, Academic institutions, such as universities and research centers, can also intervene and offer expert opinions and evidence on a particular issue. International institutions like the United Nations, the Council of Europe, and the European Union are illustrations of such interveners. The term "any person concerned" may also refer to those whose legal rights may be affected, even if only indirectly, if the Court deems that the Convention or its Protocols have been violated. For such "interested third parties," the "interest[s] of justice" may require that they be heard before the Court rules on a question that may, even if indirectly, affect their rights.
By contrast, it is not acceptable for state authorities to intervene as a third-party since it is usually the responsibility of the central government to represent the state in such matters. On the other hand, it is believed that interventions by states as third-parties can be perceived as either meddling in the affairs of other nations or as necessary steps towards promoting peace and stability in the region. However, this fact only highlights the need for states to carefully consider the impact of their intervention and take into account the potential consequences of their actions. That is why the role of states in third-party intervention is often controversial.
Third-party intervention can provide a wealth of valuable information to the Court in assisting in the decision-making process. The content of third-party interventions is crucial to determining the strategy chosen by the third party for their intervention. This information can include insights on how other jurisdictions interpret international norms and other legal obligations under regional or international law. While these interpretations do not bind the court, third-party interventions can offer guidance and valuable perspective.
Additionally, third-party interventions can offer specialized knowledge about relevant data, statistics, and the current situation on the ground, including country-of-origin information and fact-finding reports. Comparative law surveys can also highlight differences and similarities between legal systems and practices of different countries.
However, it is important to note that third-party interventions must be carefully crafted to comply with the rules and limitations set by the President of the Court. This includes avoiding the expression of personal opinions on the case and ensuring that the content provided is relevant and helpful.
Furthermore, third-party interventions can provide information on the law and practice at the national level, offering a better understanding of the Court's interpretation and identifying systematic issues related to human rights protection in the State party being considered. Therefore, it is imperative to carefully consider the content of third-party interventions to provide the most valuable and relevant information to the court.
The new changes in the Rules of Court aimed at improving and developing third-party intervention mechanism has to be welcomed. Third-party intervention in ECtHR case-law can enhance legal reasoning, promote the rule of law, and ensure that European human rights standards remain relevant and responsive to societal changes. Moreover, such interventions can draw attention to crucial information that may not have been considered by the ECtHR during the application acceptance process, both supporting and criticizing the case at hand.
There are two stages during which third-party interventions can be made: the written and oral phases. During the written stage, interveners can submit their arguments after the application has been communicated to the government of the State Party concerned. Similarly, during the oral stage, interventions can be made after the hearing has been scheduled. However, it is essential to note that the Court may only accept an intervention if it complies with the conditions and limitations set by the President or provides additional information or arguments relevant to the case.
To ensure the success of a third-party intervention, it is essential to consider the content carefully. The intervention should provide relevant information or arguments that can enhance the Court's legal reasoning and promote the rule of law. In addition, such interventions can bring to light supporting or critical information that the Court may have initially overlooked during the acceptance of the application.
Although there have been recent updates, challenges related to third-party intervention persist. The growing complexity of international human rights law and the proliferation of international courts and tribunals pose significant challenges for interveners, as they navigate competing legal frameworks and diverse judicial cultures across different fora. Furthermore, state resistance to human rights norms remains prevalent, and the persistence of authoritarian regimes presents further obstacles for third-party interveners seeking to promote accountability and safeguard vulnerable individuals and groups.
Accordingly, The ECtHR acknowledges the value of third-party interveners' efforts and all their contributions to its functioning. Reaffirming the importance of third party intervention before the Court remains a pressing issue if we navigate the dangers of human rights violations and advance justice and human rights for all. Paying attention to new changes is important, as updated legal frameworks and diverse judicial cultures of different fora can pose significant challenges to third-party interveners who must navigate competing legal frameworks. By keeping up to date with changes and updates, third-party interveners can successfully navigate these difficulties and present guiding or crucial information that may not have been initially taken into consideration. In addition, keeping informed of updates and modifications can ensure that European human rights standards advance accountability and protection for vulnerable individuals and groups.