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The threshold requirements set out in Markovic if the plaintiffs

Posted: Tue Feb 18, 2025 4:38 am
by pappu6327
The ECHR has encouraged an expansive reading of Article 6. In Delcourt v. Belgium (1970), 1 Eur. Ct. H.R. 355 (1993), the Court stated that “in a democratic society within the meaning of the Convention, the right to a fair administration of justice holds such a prominent place that a restrictive interpretation of Article 6 (1) would not correspond to the aim and purpose of that provision.” It has also maintained that rights under the Convention must be “practical and effective and not theoretical and illusory.” (See, e.g., Airey v. Ireland, 9 October 1979, § 24, Series A no. 32; Artico v. Italy, 3 Eur. H.R. Rep. 1, para. 33 (1980); Mehmet Eren v. Turkey, Eur. Ct. H.R. App. No. 32347/02, 50 (2008).).

The ECHR (photo credit), furthermore, has held that, though the text does not expressly include one, the Convention encompasses a right of access to court. Court building exterior - autumn Medium PortraitIn Golder v. UK, 18 Eur. Ct. H.R. (ser. A) (1975), the Court found that Article 6 “secures to everyone the right to have any claim related to his civil rights and obligations brought before a court or tribunal.” It would therefore, the Court stated, be impossible for Article 6 “to

describe in detail the procedural guarantees afforded to parties in a pending lawsuit and [so it] should first protect that which alone makes it in fact possible to benefit from such guarantees, that is access to court.”

In Lubbe v. Cape, (2000) 1 W.L.R. 1545 (H.L.) (U.K.), the British House of Lords indicated that Article 6 might oblige signatories to the Convention to ensure access to their courts by foreign claimants. The case concerned the extraterritorial human rights claims of more than 3,000 South Africans that the actions of a subsidiary of the Cape mining company had exposed them to asbestos. Jurisdiction in the UK seemed to depend on whether Article 6 could facilitate it. The plaintiffs contended that a ruling that the case could only be brought in a South

African court amounted to a violation of their right to a fair trial. “Because of the lack of funding and legal representation in South Africa,” they stated in court submissions, denying the English forum would be to “den[y them of] … a fair trial on terms of litigious equality with the defendant.” The House of Lords ultimately found jurisdiction on other grounds, without resolving the questions related to Article 6.

Since Lubbe v. Cape, the ECHR has itself suggested that Article 6 might apply to twitter database extraterritorial cases. In Markovic v. Italy, App. No. 1398/03, 44 Eur. H.R. Rep. 1045 (2007) (Eur. Ct. H.R.), a case reviewing the refusal of Italian courts to assume jurisdiction over the claims of victims of NATO bombings in Yugoslavia that Italy owed them damages, the Court stated that if the law of the place where the harm occurred offers a right to bring a claim, then Article 6 applies, and any case may be brought instead in the court of another member state to the Convention.

A human rights claim against a foreign corporation would appear to meet could show that the legal system where the harm took place hampers their access to justice, for example through complicated procedural requirements, high costs, or the unavailability of representation. If the ECHR were to hand down an explicit ruling, then the courts of the member states would have a mandate to hear extraterritorial human rights claims against most foreign companies.