PART 2: How to Bring a Case to the Court
c) Applications Previously Considered by the Court or
Submitted to Another International Procedure
(Article 35 § 2b)
A complaint that has already been examined either by the Court itself or which has
already been submitted to another procedure of international investigation or settlement, and which contains no new information will be declared inadmissible.571
According to the Court,
this provision is intended to avoid the situation where several international bodies would be simultaneously dealing with applications which are substantially the
same. A situation of this type would be incompatible with the spirit and the letter
of the Convention, which seeks to avoid a plurality of international proceedings
relating to the same cases.572
Other international procedures covered by the clause must be international (inter-governmental),573 independent, and qualify as “judicial or quasi-judicial proceedings similar to those set up by the Convention”574 to cause the application
to be declared inadmissible. The Human Rights Council, for instance, would not
qualify as such a procedure,575 both on account of its composition and the particularities of its proceedings.576 Conversely, the UN treaty bodies, such as the
Human Rights Committee577 and the UN Working Group on Arbitrary Detention,
would be considered judicial or quasi-judicial.578 Special UN procedures qualify as
another procedure only to the extent that they can establish individual responsibility and assess the individual facts of a case.579 The Committee established
under the European Convention against Torture (CPT) is not a quasi-judicial procedure by virtue of its confidential character nor can individuals participate in its
proceedings nor are they entitled to receive information about their outcome.580
Thus the CPT is not considered “another international procedure in terms or Article 35
§ 2 (b) of the Convention.
571 Article 35 § 2 (b) of the Convention.
572 Smirnova and Smirnova v. Russia (dec.), nos. 46133/99 and 48183/99, 3 October 2002, with reference
to Calcerrada Fornieles and Cabeza Mato v. Spain, no. 17512/90, Commission decision of 6 July 1992.
573 Lukanov v. Bulgaria, no. 21915/93, Commission decision on the admissibility of 12 January 1995.
574 Mikolenko v. Estonia (dec.), no. 16944/03, 5 January 2006.
575 Ibid.
576 Celniku v. Greece, no. 21449/04, 5 July 2007, § 40.
577 Pauger v. Austria, no. 24872/94, Commission decision of 9 January 1995. See also Catherine Phuong,
“The Relationship Between the European Court of Human Rights and the Human Rights
Committee: Has the ‘Same Matter’ Already Been ‘Examined’?”, in Human Rights Law Review, vol. 7,
2007, pp. 385–395.
578 Peraldi v. France (dec.), no. 2096/05, 7 April 2009, B.
579 Tabarik Malsagova and Others v. Russia (dec.), no. 27244/03, 6 March 2008 with reference to the
Working Group on Enforced or Involuntary Disappearances.
580 Pace v. Italy, no. 22728/03, 17 July 2008, § 26: “La Cour relève que le CPT n’est pas une instance
judiciaire ou quasi judiciaire et que son rôle, tel que défini par la Convention qui l’a institué,
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