CAT/C/67/D/813/2017 4.3 The State party observes that on 2 June 2016, the European Court of Human Rights adopted an inadmissibility decision in relation to an application submitted by the complainant concerning the same facts as those underlying his complaint to the Committee. The Court found that “considering all the elements… the admissibility criteria in articles 34 and 35 of the Convention had not been met”. 4.4 The State party submits that, according to the practice of the European Court of Human Rights, it can be presumed that the Court found the complaint inadmissible for reasons related to the merits of the case rather than on procedural grounds. The State party therefore considers that the Court has examined the complainant’s claims in the sense of article 22 (5) (a) of the Convention. Complainant’s comments on the State party’s observations 5.1 On 11 September 2017, the complainant confirmed that his application to the European Court of Human Rights had been dismissed on 2 June 2016 by a single judge. The Court’s decision only mentioned that “the Court considers that the admissibility criteria in articles 34 and 35 of the Convention had not been met”. It was also stated in the decision that the judgment was final and could not be appealed to the Grand Chamber. 5.2 Regarding the argument that the communication is not admissible under article 22 (5) (a) of the Convention because of the European Court of Human Rights decision, the complainant submits that that Court’s decision does not preclude the Committee from examining his complaint since the “blanket dismissal” of the case by a single judge of the Court does not amount to an examination of the case within the meaning of article 22 (5) (a) of the Convention. The complainant refers to the Committee’s decision of 27 January 2017 in S. v. Sweden.9 In that case too, the European Court of Human Rights issued a decision by a single judge, using the same reasoning. The Committee determined that this “succinct reasoning… does not allow the Committee to verify the extent to which the Court examined the complainant’s application, including whether it conducted a thorough analysis of the elements related to the merits of the case”. It concluded that it was not precluded by article 22 (5) (a) of the Convention from examining the communication. The complainant holds that the same reasoning should be applied in the present case. 5.3 The complainant further argues that his case was not examined within the meaning of article 22 (5) (a) of the Convention, as it was dismissed for procedural reasons only, without a decision being taken on the merits of the case. The complainant refers to the jurisprudence of the Human Rights Committee, according to which a case cannot be deemed to have been examined “where a complaint to another international instance, such as the European Court of Human Rights, was dismissed on procedural grounds without examination of the merits”.10 Only when the European Court of Human Rights bases a finding of inadmissibility not only on procedural grounds, but also on grounds arising from some degree of consideration of the substance of the case, would a case that had been deemed inadmissible be precluded under article (5) (2) (a) of the Optional Protocol of the International Covenant on Civil and Political Rights.11 5.4 The complainant asserts that it is necessary to determine whether the inadmissibility decision of the European Court of Human Rights included considerations concerning the merits of the case. In the present case, that Court dismissed his complaint by broadly stating that the admissibility criteria in articles 34 and 35 of the European Convention on Human Rights had not been met. He explains that those articles contain a variety of admissibility criteria, including, principally, formal criteria such as the exhaustion of local remedies, as well as criteria that involve a substantial examination of the case. The complainant submits that it is impossible to determine whether the case was declared inadmissible by the Court for procedural reasons only or also on substantive grounds. 9 10 11 S v. Sweden (CAT/C/59/D/691/2015), paras. 7.2–7.6. See also H.A. v. Sweden (CAT/C/63/D/744/2016), paras. 6.3–6.6. See, for example, Alzery v. Sweden (CCPR/C/88/D/1416/2005), para. 8.1. Aarrass v. Spain (CCPR/C/111/D/2008/2010), para. 9.3. 5