2 June 2021

PRACTICE FOLLOWED BY THE PANEL

OF THE GRAND CHAMBER WHEN DECIDING ON
REQUESTS FOR REFERRAL
UNDER ARTICLE 43 OF THE CONVENTION

Note prepared by the Registry1

1
This note has been drawn up by the Grand Chamber Registry and is not binding on the Court. It
represents an update of the first version of this note (drafted in 2011), to which it adds developments
since then in the proceedings before the Panel of the Grand Chamber and more recent case law
examples.

1
 Table of contents

I. INTRODUCTION ..................................................................................................... 3
II. STATISTICS............................................................................................................ 4
III. ARTICLE 43 OF THE CONVENTION................................................................. 5
IV. CASES IN WHICH A REFERRAL REQUEST MAY BE GRANTED ............... 6
(a) Cases affecting case-law consistency .................................................................. 7
(b) Cases which may be suitable for development of the case-law .......................... 8
(c) Cases which are suitable for clarifying the principles set forth in the case-law 10
(d) Cases in which the Grand Chamber may be called upon to re-examine a
development in the case-law endorsed by the Chamber .......................................... 11
(e) Cases raising a serious question affecting the application of the Convention ... 14
(f) Cases concerning “new” issues .......................................................................... 15
(g) Cases raising a “serious issue of general importance” ....................................... 17
(h) Cases with significant repercussions .................................................................. 18
V. REQUESTS THAT ARE IN PRINCIPLE REJECTED ........................................ 19
(a) Decisions by the Chamber to declare a complaint inadmissible ........................ 19
(b) Awards made by the Chamber under Article 41 of the Convention .................. 20
(c) The Chamber’s assessment of the facts .............................................................. 20
(d) Lack of significant shortcomings in the relevant proceedings and the
decision-making process at national level ............................................................... 21
(e) Application of well-established case-law ........................................................... 21
VI. WORKING PROCEDURES OF THE PANEL OF THE GRAND CHAMBER 22
VII. COMPOSITION OF THE PANEL OF THE GRAND CHAMBER ................... 23
APPENDIX I: Extracts from the 2016 report “The Interlaken process and the
Court” ......................................................................................................................... 25
APPENDIX II: Statistics on the number of referral requests accepted or rejected
by the Panel of the Grand Chamber ........................................................................ 28
APPENDIX III: Cases referred to the Grand Chamber by the Panel since the
entry into force of Protocol No. 11 to the Convention ............................................ 30

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I. INTRODUCTION

1. In accordance with Article 43 of the Convention, within a period of three months

from the date of the judgment of the Chamber, any party to the case may, in
exceptional cases, request that the case be referred to the Grand Chamber. Requests
for referral are examined by a panel of the Grand Chamber, constituted in accordance
with Article 43 § 1 of the Convention and Rule 24 § 5 of the Rules of Court
(hereinafter “the Panel”). If the Panel accepts the request, the Grand Chamber decides
the case by means of a judgment.

2. Since its creation with the entry into force of Protocol No. 11 to the Convention on
1 November 1998, the panel has examined 5,816 referral requests. No reasons are
given for its decisions to accept or reject such requests. This consistent practice of the
Panel in not giving reasons for its decisions is based on Article 45 of the Convention,
a provision added by Protocol No. 11 to the Convention which requires only that
reasons be given for judgments and for decisions declaring applications admissible or
inadmissible. Paragraph 105 of the explanatory report on Protocol No. 11 states that
Article 45 of the Convention “does not concern decisions taken by the panel of five
judges of the Grand Chamber in accordance with Article 43”. It should also be noted
that Rule 73 § 2 in fine of the Rules of Court states that “Reasons need not be given
for a refusal of the request [for referral]”.

3. The question of a possible change to the consistent practice of the Grand Chamber
Panel in not giving reasons for its decisions has been considered by the Court on
several occasions, first of all in 2011 following a request to that effect by the States
Parties signatory to the İzmir Declaration,2 then in 2015, in response to a similar
request in the Action Plan included in the Brussels Declaration,3 and more recently in
2021, following an examination proprio motu of this question by a working group of
the Court with the task of examining matters relating to the functioning of the Grand
Chamber.

4. The discussions within the Court in 2011, 2015 and 2021 confirmed the
justification for this practice and the need for it to be maintained.4 In the Court’s
view, the nature of the procedure before the Panel of the Grand Chamber is not one
that lends itself to the giving of reasons to the party that made the request: the Panel
acts as an intermediary filtering body exercising a wide discretion based on broadly
defined criteria. This function is very different from that of ruling on the admissibility
and merits of cases, to which the duty to give reasons, as provided for in Article 45 of
the Convention, naturally applies. If the Panel adopted a practice of giving precise,
detailed reasons, the integrity and finality of Chamber judgments could be affected,
whereas a purely formal statement of reasons, that is to say, a mere indication that the

2
See point F. 2 (e) of the Follow-up Plan included in the Declaration adopted by the High-Level
Conference on the Future of the European Court of Human Rights, held in İzmir, Turkey, on 26-27
April 2011, under the Turkish Chairmanship of the Committee of Ministers of the Council of Europe.
3
See point A. 1 (d) of the Action Plan included in the Declaration adopted by the High-Level
Conference meeting in Brussels on 26 and 27 March 2015 at the initiative of the Belgian Chairmanship
of the Committee of Ministers of the Council of Europe.
4
See in particular §§ 16-19 of the Court’s 2016 report "The Interlaken Process and the Court"
(Appendix I).

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request did not satisfy the conditions specified in Article 43, would be of negligible
added value for the parties.5 Moreover, in view of the large number of referral
requests, the Court would have a substantial workload if the Panel were required to
give reasons for each of its decisions accepting or rejecting such requests.

5. In the interests of transparency, on 21 June 2011 the Bureau of the Court approved
a proposal by the Deputy Registrar of the Court to “provid[e] the States with an
overview of the Panel’s general practice, giving clear indications as to the cases that
risked being rejected and those that were likely to be accepted”.

6. This note, drawn up by the Grand Chamber Registry, puts the Deputy Registrar’s
proposal into practice. It reflects the guiding principles that have emerged in the
Panel’s practice over the years, from its creation in November 1998 to the present
day. Its purpose is to inform the parties about the procedure followed by the Panel
and to assist them in assessing the prospects of success of a referral request.6

7. What follows is a description of how the Panel currently functions. It can be seen
that for certain categories of cases, requests for referral have little chance of
succeeding because they do not satisfy the requirement that only exceptional cases
can be referred to the Grand Chamber. Conversely, for other categories of cases
referral requests have a good chance of being accepted by the Panel because they raise
issues of consistency of the Court’s case-law or because they raise novel issues of law
that require an authoritative determination by the Grand Chamber. Lastly, it can be
seen that the composition of the Panel ensures a certain degree of continuity that helps
foster coherence and consistency in its practice.

II. STATISTICS

8. Since the entry into force of Protocol No. 11 to the Convention on 1 November
1998, the Panel has examined 5,816 requests for referral7 (see charts in Appendix II):
38.10% of these requests (2,216) were made by respondent Governments, 38.46%
(2,237) by applicants and 7% (404) by both parties.

9. Only 290 requests (approximately 4.98% of all requests) have been accepted to
date, resulting in the case being referred to the Grand Chamber.8 Out of these 290
successful requests, 153 (approximately 53%) were made by the respondent
5
See the full reasons put forward by the plenary Court in Appendix I to this note.
6
This note updates the initial version of the note entitled “The general practice followed by the Panel
of the Grand Chamber when deciding on requests for referral in accordance with Article 43 of the
Convention” (#3672914), dated October 2011 and available on the Court’s Internet site:
[Link]
7
This figure corresponds to the total number of applications concerned by a referral request, including
the joint applications (959), as of 29 January 2021. A slight fluctuation in the annual number of
requests for referral may be noted: 252 (in 2019), 206 (2018), 248 (2017), 295 (2016), 233 (2015), 285
(2014), 263 (2013), 259 (2012) and 327 (2011), although there was a significant decrease in 2020
(118), which could be explained by the COVID-19 crisis.
8
The Panel’s average acceptance rate of referral requests has remained relatively stable over the years
(as of October 2011, the date of the first version of this note, it was 5.16%). As of January 2021, when
this version of the note was drawn up, it was 4.98%. Year on year, a certain fluctuation in the
acceptance rate of referral requests can nevertheless be noted: 5.93% (in 2020), 4.36% (2019), 3.39%
(2018), 7.25% (2017), 5.76% (2016), 8.58% (2015), 6.66% (2014), 5.96% (2013), 3.86% (2012) and
3.36% (2011).

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Governments, 122 (approximately 42%) by the applicants and 15 (approximately 5%
of all requests) by both parties.9

10. These statistics show that requests for referral are accepted in only a small
percentage of cases (approximately 5%); indeed, only “exceptional cases” should be
referred to the Grand Chamber, in accordance with the letter and spirit of Article 43 of
the Convention. Lastly, it should be noted that to date, the number of cases examined
by the Grand Chamber as a result of the referral procedure is slightly higher than the
number of cases resulting from relinquishment of jurisdiction by a Chamber.10

III. ARTICLE 43 OF THE CONVENTION

11. The starting point of the Panel’s analysis is necessarily Article 43 § 2 of the
Convention, which provides that a request for referral should be accepted “if the case
raises a serious question affecting the interpretation or application of the Convention
or the Protocols thereto, or a serious issue of general importance”. The explanatory
report on Protocol No. 11 notes (in paragraphs 99 to 102) that these conditions should
be applied “in a strict sense”, which suggests that, in principle, a request for referral
should be granted only when the case is, at least in some respects, exceptional. This
interpretation is confirmed by the first paragraph of Article 43 of the Convention,
which provides that “any party to the case may, in exceptional cases, request that the
case be referred to the Grand Chamber” (emphasis added). As exceptional cases are
extremely limited in number, it may be reasonably expected that only a small minority
of referral requests will be accepted.11

12. According to the explanatory report on Protocol No. 11, “[s]erious questions
affecting the interpretation of the Convention are raised when a question of
importance not yet decided by the Court is at stake, or when the decision is of
importance for future cases and for the development of the Court’s case-law”. This
may also be the case when the impugned judgment is not consistent with a previous
judgment of the Court (see paragraph 100 of the explanatory report).

13. A serious question affecting the application of the Convention may be raised,
according to the explanatory report on Protocol No. 11, when a judgment necessitates
a substantial change to national law or administrative practice (see paragraph 101 of
the explanatory report). This may happen, for example, where the Court has applied
the pilot-judgment procedure in accordance with Rule 61 of the Rules of Court and
has therefore considered that the facts of the application disclosed the existence, in the
Contracting State concerned, of a “structural or systemic problem or other similar
dysfunction” (see also paragraphs 30-32 below).

9
See the summary table in Appendix III indicating the “Cases referred to the Grand Chamber by the
Panel since the entry into force of Protocol No. 11 to the Convention”.
10
55.95% of cases have been referred to the Grand Chamber by the Panel and 44.05% following
relinquishment of jurisdiction by a Chamber (see chart in Appendix II). As of October 2011, the date of
the first version of this note, the respective proportions were: 52.13% of cases referred to the Grand
Chamber by the Panel and 47.87% following relinquishment of jurisdiction by a Chamber.
11
As indicated in the previous section, statistics show that the “acceptance rate” of referral requests is
around 5%.

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14. Lastly, a “serious issue of general importance” could involve a substantial
political issue or an important issue of policy (see paragraph 102 of the explanatory
report).

15. The mere fact that a case is factually complex or politically delicate or has given
rise to dissenting opinions does not, as such, justify its referral to the Grand Chamber.
For example, the Panel systematically rejects requests which challenge the factual
findings of the Chamber in cases concerning prison conditions or other issues under
Articles 2 and 3 of the Convention where the case-law is well established. However,
under certain circumstances, these same facts may be factors militating in favour of
the existence of one or more of the grounds for referral set forth in Article 43 § 2 of
the Convention (in other words, when the dissenting opinions are, in the Panel’s view,
well reasoned on key Convention issues and/or point out inconsistencies in the case-
law).

16. The members of the Panel consider whether the case warrants referral to the
Grand Chamber on the grounds that it is exceptional as indicated in the text of Article
43 of the Convention. They do not seek to impose their views on the merits of the
case, nor do they vote to refer a case because they disagree with the Chamber’s
reasoning or would themselves have voted differently. The members of the Panel thus
do not assess the merits of the case but, as in national leave-to-appeal procedures,
express views as to whether the case should be referred to the Grand Chamber
because it meets the statutory criteria set out above. Disagreement on issues of fact,
on the inferences to be drawn from the facts, and/or, for instance, on the fair balance
that should have been struck between competing rights in the particular circumstances
of the case, does not necessarily mean that the conditions for referral are met. Indeed,
the Grand Chamber should not be seen as an appeal court whose function is to correct
alleged errors of fact or of assessment of the various features of each individual case.
The intervention of the Grand Chamber is instead limited to cases which, by their
nature and by the nature of their legal, social and political implications, are capable of
having a serious impact on the extent and scope of the protection afforded by the
Convention.

IV. CASES IN WHICH A REFERRAL REQUEST MAY BE GRANTED

17. Although the Panel’s decisions do not contain reasons, the parties to those cases
that are accepted for referral will generally have some idea as to why they are
considered by the Panel to meet the criteria set out in Article 43. Such cases, for
example, may raise new legal issues, may have given rise to issues of consistency at
Chamber level or may have a high profile for other reasons relating to the complaints
raised or the context of the dispute. For requests that are rejected, the cases fall into a
variety of categories (see paragraphs 39-47 and 54 below) which the Panel will
systematically reject as not suitable for referral. Needless to say, there are also
borderline cases which lend themselves to lively discussion within the Panel as to
whether they should be referred to the Grand Chamber, and which are consequently
difficult to classify.

18. Nevertheless, it should not be overlooked that the Panel and the Grand Chamber
are separate and differently composed bodies. As a result, they may have differing
views as to the importance of a case from the perspective of the Court’s case-law or

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general policy. Thus, it is quite conceivable that the Panel’s reasons for referral may
not be followed by the majority of the Grand Chamber, which may, for instance,
decide simply to confirm the Chamber judgment,12 although it may sometimes do so
on the basis of different reasoning.13

19. It follows that the Panel’s practice cannot be inferred only from the Grand
Chamber’s reasoning and that an analysis of its reasons should take into account the
parties’ requests for referral. Where such requests have been accepted, it may be
assumed that the Panel has, at least partly, accepted the Government’s or applicant’s
arguments.

20. Cases that will be referred to the Grand Chamber are likely to belong to the
following categories.

(a) Cases affecting case-law consistency

21. The fundamental role of the Panel is to ensure that Chamber judgments are
consistent with the established case-law of the Court. Where a Chamber judgment
significantly departs from the previous case-law or where a number of approaches to
the same question have (or appear to have) emerged over time in the practice of the
Sections, with the risk of undermining the coherence and consistency of the Court’s
case-law, the Panel exercises the function conferred on it by the Convention by asking
the Grand Chamber to determine the interpretation to be pursued and to settle any
conflict.

22. Examples of this kind of situation may be found in the following cases:

– Lopes de Sousa Fernandes v. Portugal (no. 56080/13), where the respondent

Government, joined by the Irish and United Kingdom Governments
intervening as third parties, argued, inter alia, that the approach adopted by the
Chamber to the question of medical negligence was inconsistent with the
principles developed by the Court concerning the State’s positive obligation to
protect life and their application in a number of other cases;14

– Bouyid v. Belgium (no. 23380/09), where the applicants, joined by the third-
party interveners, argued, inter alia, that the Chamber’s legal characterisation
of the slapping by police officers of a person in police custody was
inconsistent with the principles developed by the Court concerning the use of
force by a State agent against a person deprived of his liberty and their
application in a number of other cases;15

12
See paragraph 26 below.
13
This was the case, for example, in Magyar Kétfarkú Kutya Párt v. Hungary (no. 201/17) and S.M. v.
Croatia (no. 60561/14), where the Panel of the Grand Chamber accepted a referral request by the
Government and the Grand Chamber reached the same conclusion as the Chamber judgment, but with
different reasoning.
14
The applicant referred in particular to Byrzykowski v. Poland (no. 11562/05, 27 June 2006); Eugenia
Lazăr v. Romania (no. 32146/05, 16 February 2010); Centre for Legal Resources on behalf of Valentin
Câmpeanu v. Romania ([GC], no 47848/08, ECHR 2014); and Powell v. the United Kingdom ((dec.),
no. 45305/99, ECHR 2000‑V).
15
The applicants referred to the following cases, among others: Selmouni v. France ([GC], no.
25803/94, ECHR 1999-V); Ribitsch v. Austria (4 December 1995, Series A no. 336); Rivas v. France

7
 – Muršić v. Croatia (no. 7334/13), where the applicant’s request for referral
highlighted the emergence in the practice of different Chamber formations of
inconsistent approaches to the question of the minimum personal space to be
allocated to a prisoner in a multi-occupancy cell;

– Guiso-Gallisay v. Italy (no. 58858/00), where the Chamber had “departed

from the case-law on the application of Article 41 in cases of constructive
expropriation”;16

– Scoppola (no. 3) v. Italy (no. 126/05), where the respondent Government

challenged, inter alia, the consistency of the Chamber’s approach with the
principles on prisoners’ voting rights set forth in Hirst v. the United Kingdom
(no. 2) ([GC], no. 74025/01, ECHR 2005-IX);

– Herrmann v. Germany (no. 9300/07), where the applicant contested the

consistency of the Chamber judgment on the issue of hunting rights with the
principles set forth in Chassagnou and Others v. France ([GC], nos. 25088/94,
28331/95 and 28443/95, ECHR 1999-III);

– Sabri Güneş v. Turkey (no. 27396/06), where the Chamber had departed from
the Court’s practice in fixing the dies ad quem of the six-month time-limit set
forth in Article 35 § 1 of the Convention.17

23. A distinction should be made, however, between judgments which depart from
the case-law and judgments which simply apply the existing case-law to new
situations. The latter do not necessarily lend themselves to referral, as they may be
seen as constituting a simple extension of – and not a change in – the case-law.
Referral is appropriate only when the Panel feels that such an extension goes beyond
the scope of the existing case-law.18

(b) Cases which may be suitable for development of the case-law

24. The Panel may also decide to refer cases to the Grand Chamber which do not
disclose, as such, a (potential) inconsistency with the previous case-law, but which
present an opportunity for development of the case-law. This may occur, for example,
where a case raises issues going beyond the scope of the existing case-law, or where a
request for referral highlights a change in society that might call for the previous case-
law to be updated by means of an interpretation of the Convention in the light of
present-day conditions.

(no. 59584/00, 1 April 2004); and El-Masri v. the former Yugoslav Republic of Macedonia [GC], no.
39630/09, § 152, ECHR 2012).
16
See Guiso-Gallisay v. Italy (just satisfaction) [GC], no. 58858/00, § 56, 22 December 2009.
17
See Sabri Güneş v. Turkey, no. 27396/06, §§ 33-44, 24 May 2011.
18
See paragraphs 24 and 25 below. For an older example, see Nejdet Şahin and Perihan Şahin v.
Turkey (no. 13279/05, § 52, 27 May 2010), in which the Chamber applied the principles concerning
legal certainty (developed in respect of divergences in decisions adopted by courts belonging to the
same branch of the legal system) to a (partly) new situation: discrepancies between judgments of
different and hierarchically unrelated types of court. The Grand Chamber confirmed the Chamber’s
approach (see judgment of 20 October 2011).

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25. Examples of the above are the following cases:

– Ilias and Ahmed v. Hungary (no. 47287/15), which gave the Grand Chamber
the opportunity to develop its case-law on the question whether the
confinement of asylum-seekers in a transit zone at the land border between
two member States of the Council of Europe could be regarded as deprivation
of liberty for the purposes of Article 5 § 1 of the Convention;19

– Rooman v. Belgium (no. 18052/11), where the Grand Chamber was called
upon to determine whether, in the light of the gradual developments in its
case-law over the past fifteen years and current international standards that
attached significant weight to the need to provide treatment for the mental
health of persons in compulsory confinement, the time had come to consider
that the provision of “appropriate and individualised treatment” to detainees
with mental disorders was a condition for the “lawfulness” of their deprivation
of liberty; the Grand Chamber answered in the affirmative, reversing the
Chamber’s conclusion on this issue;

– S.M. v. Croatia (no. 60561/14), where the Grand Chamber was called upon to
determine whether the principles established in cases concerning human
trafficking were also applicable in cases concerning forced prostitution; the
Grand Chamber answered in the affirmative, noting the conceptual proximity
between the two phenomena;

– N.D. and N.T. v. Spain (nos. 8675/15 and 8697/15), which gave the Grand
Chamber its first opportunity to address the issue of the immediate and
forcible return of aliens from a land border, thereby developing its case-law
concerning the removal of aliens who had attempted to enter a State’s territory
by sea;

– Svinarenko and Slyadnev v. Russia (nos. 32541/08 and 43441/08), where the
Grand Chamber was called upon to determine whether the time had come to
find that holding a person in a metal cage during a trial was, in view of its
objectively degrading nature, incompatible in itself with the standards of
civilised behaviour that were the hallmark of a democratic society; it answered
in the affirmative, following a series of Chamber judgments in which the use
of a cage had not been prohibited as such if it was justified by security
considerations;

– Bayatyan v. Armenia (no. 23459/03), in which the Chamber, considering that

an evolutive interpretation of the Convention was not justified in the
circumstances, concluded that Article 9, read in the light of Article 4 § 3 (b),

19
See also Z.A. and Others v. Russia, nos. 61411/15, 61420/15, 61427/15 and others (2019), which
provided the Grand Chamber with an opportunity to develop the case-law concerning the prolonged
confinement of asylum-seekers in an airport transit zone, while emphasising the need to adopt a
practical and realistic approach to this issue, having regard to the present-day conditions and challenges
linked to the mounting migration crisis in Europe.

9
 did not guarantee a right to refuse to perform military service on conscientious
grounds; the Grand Chamber reached a different conclusion.20

26. It goes without saying that in such cases there is nothing to prevent the Grand
Chamber from confirming the existing case-law and refusing to endorse the change
envisaged by the majority of the Panel.21

(c) Cases which are suitable for clarifying the principles set forth in the case-law

27. In some cases referred to the Grand Chamber, the Chamber judgment, without
being per se innovative, touched on an area in which it was felt that clarification of
the relevant basic principles was needed. For instance:

– In Lopes de Sousa Fernandes v. Portugal (no. 56080/13), the Grand Chamber

had the opportunity to review the case-law concerning the scope of the State’s
substantive positive obligation in relation to deaths occurring as a result of
alleged medical negligence, and was able to clarify the nature of that
obligation and the circumstances in which the State’s responsibility to protect
life could be engaged in respect of the acts and omissions of healthcare
providers;

– In Paposhvili v. Belgium (no. 41738/10), the Grand Chamber had the

opportunity to provide guidance as to the point at which humanitarian
considerations prevailed over other interests in relation to the expulsion of a
seriously ill person, and was thus able to clarify what it had meant by the
“other very exceptional cases” referred to in its earlier judgment in N. v. the
United Kingdom;22

– In Guðmundur Andri Ástráðsson v. Iceland (no. 26374/18), the Grand

Chamber was able to clarify the meaning and scope of the concept of “tribunal
established by law” and its relationship with the other “institutional
requirements” (notably those of independence and impartiality of a tribunal);

– In Güzelyurtlu and Others v. Cyprus and Turkey (no. 36925/07), the referral
gave the Grand Chamber the opportunity to define and develop, in the context
of transnational criminal investigations, the concept of a Contracting State’s
obligation to cooperate with another Contracting State or with a de facto entity
under the effective control of another Contracting State;

– In Gestur Jónsson and Ragnar Halldór Hall v. Iceland (nos. 68271/14 and
68273/14), the referral enabled the Grand Chamber to refine and clarify the

20
See Bayatyan v. Armenia [GC], no. 23459/03, 7 July 2011. Further examples of cases which may fall
into this category are Silih v. Slovenia ([GC], no. 71463/01, 9 April 2009) and Varnava and Others
v. Turkey ([GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90,
16072/90 and 16073/90, 18 September 2009).
21
It can be argued that something of this kind happened in Gorou v. Greece (no. 2) ([GC],
no. 12686/03, 20 March 2009), in which one of the main questions raised was whether the domestic
authorities’ positive obligations under Article 6 § 1 of the Convention should be extended to the point
of establishing a duty for the public prosecutor to justify his or her decision not to lodge an appeal
sought by a civil party. The Grand Chamber answered in the negative.
22
N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008.

10
 third criterion set forth in Engel and Others v. the Netherlands23 in order to
determine whether proceedings concerning the imposition of a fine, with no
statutory limit, on defence counsel for failing to appear at a hearing could be
regarded as “criminal” in nature;

– In Albert and Others v. Hungary (no. 5294/14), the referral allowed the Grand
Chamber to clarify the distinction to be made between acts affecting
shareholders’ rights and acts affecting a company, thereby confirming the
crucial importance of this distinction in accepting the victim status of
shareholders;

– In Ibrahim and Others v. the United Kingdom (no. 50541/08, 50571/08,

50573/08 and others), the referral gave the Grand Chamber the opportunity to
develop and clarify the criteria set forth in Salduz24 and the relationship
between them as regards the restriction of the right of access to a lawyer
during initial police questioning;

– In Üner v. the Netherlands (no. 46410/99), the Grand Chamber had the
opportunity to enumerate and clarify the relevant criteria for assessing whether
an order for an alien’s expulsion was necessary in a democratic society and
proportionate to the legitimate aim pursued;

– In Ramsahai and Others v. the Netherlands (no. 52391/99), the Grand

Chamber was called upon to specify the requirements for an investigation into
a death attributable to a State agent to be regarded as effective and
independent;

– In Medvedyev and Others v. France (no. 3394/03), the referral gave the Grand
Chamber the opportunity, inter alia, to explain in detail, with reference to its
established case-law, the factors that brought the applicants, who had been
arrested on a ship on the high seas, within the jurisdiction of France for the
purposes of Article 1 of the Convention.25

(d) Cases in which the Grand Chamber may be called upon to re-examine a
development in the case-law endorsed by the Chamber

28. The Chamber may adopt a judgment which, without explicitly conflicting with
previous authorities, may be seen as a significant development of the case-law
principles. In these cases, the Panel may feel that confirmation (or rejection) of such a
development is needed from the Grand Chamber. This is notably the case when the
Chamber has found a violation of the Convention in circumstances which, in the past,
had not systematically led to such a conclusion.

29. Examples of this type of situation may be found in the following cases:

23
Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22.
24
Salduz v. Turkey [GC], no. 36391/02, ECHR 2008.
25
See also Blečić v. Croatia ([GC], no. 59532/00, ECHR 2006-III), in which the Court had the
opportunity to clarify its case-law concerning its jurisdiction ratione temporis.

11
 – Pentikäinen v. Finland (no. 11882/10), in which the Chamber found no
violation of Article 10 of the Convention on account of the arrest, detention
and conviction of a journalist who had disobeyed police orders to disperse
during a demonstration; this conclusion was confirmed by the Grand Chamber
in the light of a comparative-law survey and the international and European
standards regulating the conduct of the police towards journalists covering
demonstrations;

– Lopez Ribalda and Others v. Spain (nos. 1874/13 and 8567/13), in which the
Chamber found a violation of Article 8 of the Convention on account of the
video-surveillance of supermarket cashiers by their employer through cameras
installed at their workplace; this conclusion was reversed by the Grand
Chamber, which held that the principles set out in the Bărbulescu judgment26
concerning the monitoring of employees’ Internet use in the workplace should
be transposed to the case at hand;

– Bouyid v. Belgium (no. 23380/09), in which the Chamber held that a slap
inflicted by police officers during questioning could not be regarded as having
attained the level of severity required to fall within the scope of Article 3 of
the Convention and therefore found no violation of that Article; the Grand
Chamber reversed that finding, inter alia in the light of international texts and
instruments relating to the concept of “human dignity” and the arguments put
forward by the third-party interveners;

– Dvorski v. Croatia (no. 25703/11), in which the Chamber found no violation

of Article 6 of the Convention on account of the admission in evidence in
criminal proceedings of a confession made by the applicant during initial
police questioning in the presence of a lawyer, but after the applicant had been
denied the opportunity to appoint a lawyer of his choosing; the Grand
Chamber reversed that finding after a detailed analysis of whether the denial
of that opportunity had irretrievably prejudiced the accused’s defence rights;

– Guðmundur Andri Ástráðsson v. Iceland (no. 26374/18), in which the Grand

Chamber endorsed and refined the “flagrant breach” criterion which the
Chamber had applied in assessing the effect on compliance with the “tribunal
established by law” requirement of the fact that one of the judges sitting on the
bench of a court of appeal had been appointed in breach of the procedures
provided for by domestic law;

– Selahattin Demirtaş v. Turkey (no. 2) (no. 14305/17), in which the Chamber

examined for the first time the effects of the pre-trial detention of an elected
member of parliament on the performance of his parliamentary duties, and
found a violation of Article 3 of Protocol No. 1; this conclusion was
confirmed by the Grand Chamber;

– Mamatkulov and Askarov v. Turkey (nos. 46827/99 and 46951/99), in which

the Chamber found, for the first time, a violation of Article 34 of the
Convention in that the respondent Government had failed to comply with the

26
Bărbulescu v. Romania [GC], no. 61496/08, 5 September 2017.

12
 interim measures indicated by the Court under Rule 39 of the Rules of Court;
this finding was confirmed by the Grand Chamber on the basis of an attentive
analysis of the scope of interim measures and of the right of individual
petition;

– Kovačić and Others v. Slovenia (nos. 44574/98, 45133/98 and 48316/99), in

which the Chamber struck out the cases, concerning the freezing of foreign-
currency bank accounts, on the grounds that the matter had been resolved and
that it was no longer justified to continue the examination of the applications;
the Grand Chamber confirmed these findings;

– Paladi v. Moldova (no. 39806/05), in which the Chamber found that the delay
in complying with an interim measure, even if it had not caused irreparable
damage to the applicant and had not prevented him from pursuing his
application before the Court, had violated Article 34 of the Convention; the
Grand Chamber agreed;

– Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) (no.

32772/02), in which the Chamber held that the domestic authorities’ refusal to
review a judgment which had been adopted in breach of Article 10 of the
Convention amounted to a fresh violation of that provision; the Grand
Chamber endorsed that finding, after careful scrutiny of the principles
governing the execution of the Court’s judgments;

– Kart v. Turkey (no. 8917/05), in which the Chamber concluded that the refusal
to lift the applicant’s parliamentary immunity had violated his right to access
to a court for the determination of the criminal charges against him; the Grand
Chamber reversed this finding;

– Kononov v. Latvia (no. 36376/04), in which the Chamber found that the
applicant could not reasonably have foreseen his punishment for war crimes
for acts committed in 1944; the Grand Chamber reversed this conclusion,
finding that the applicant’s acts constituted offences defined with sufficient
accessibility and foreseeability by the laws and customs of war;

– Taxquet v. Belgium (no. 926/05), in which the Chamber found a violation of

Article 6 § 1 of the Convention on account of the lack of reasoning in the
Assize Court’s judgment; the Grand Chamber endorsed this finding in the
light of, inter alia, a comparative-law survey and the submissions of the third-
party interveners, the United Kingdom, Irish and French Governments;

– Perdigão v. Portugal (no. 24768/06), in which the Chamber found that the
concrete application of Portugal’s method of calculating and fixing court fees
had led to a complete lack of compensation for the expropriation of the
applicants’ property; the Grand Chamber agreed that there had been a
violation of Article 1 of Protocol No. 1.

13
(e) Cases raising a serious question affecting the application of the Convention

30. Where the facts of an application disclose the existence, in the Contracting State
concerned, of a structural or systemic problem or other dysfunction necessitating a
substantial change to domestic law or administrative practice, the Panel may consider
it useful for the Grand Chamber to intervene in order to broaden the examination of
the applicant’s complaints to other provisions of the Convention or the Protocols
thereto in addition to those envisaged by the Chamber. It may also deem it necessary,
in the light of the arguments put forward by the party requesting referral, for the
Grand Chamber to re-examine the fundamental question of the nature of the systemic
or endemic dysfunction giving rise to the problem, which will have a bearing on the
extent of the general measures the respondent State would be required to take to
remedy it.

31. Examples can be found in the following cases:

­ Kurić and Others v. Slovenia (no. 26828/06), where the referral enabled the
Grand Chamber to extend the examination of the applicants’ complaints to
Article 14 of the Convention, bearing in mind the importance of the issue of
discrimination in this case in relation to the solution envisaged by the
Chamber to the question of the authorities’ alleged failure to settle the
question of “erased” people in Slovenia;
­ Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and
“the former Yugoslav Republic of Macedonia” (no. 60642/08), concerning the
inability to recover “old” foreign-currency savings – deposited with two banks
in the current territory of Bosnia and Herzegovina – following the dissolution
of the Socialist Federal Republic of Yugoslavia (SFRY), where the referral
gave the Grand Chamber the opportunity to confirm the validity of the
Chamber’s application of the pilot-judgment procedure, while also allowing it
to highlight the singular nature of this case and to distinguish it from standard
cases involving the rehabilitation of insolvent private banks;
­ Hutten-Czapska v. Poland (no. 35014/97), concerning the rent-control scheme
that imposed a number of restrictions on the rights of landlords in Poland,
where the referral allowed the Grand Chamber to provide some important
explanations about the cause of the underlying systemic problem, which had
significant repercussions on the general measures the respondent State was
required to take to remedy it.

32. It is important to note, however, that the mere fact that a Chamber judgment has
been adopted in accordance with the pilot-judgment procedure provided for in Rule
61 of the Rules of Court does not in itself mean that the case must be referred to the
Grand Chamber.27 Recent practice shows that the Court’s pilot judgments under Rule
61 are mainly delivered by a Chamber. Most of these judgments become final in the

27
The most recent judgments in which the Grand Chamber dealt with cases in which the pilot-
judgment procedure had been applied date back to 16 July 2014 (Ališić and Others v. Bosnia and
Herzegovina, Croatia, Serbia, Slovenia and “the former Yugoslav Republic of Macedonia”, no.
60642/08) and 26 June 2012 (Kurić and Others v. Slovenia, no. 26828/06).

14
circumstances set out in Article 44 § 2 of the Convention,28 without any intervention
by the Grand Chamber.29

(f) Cases concerning “new” issues

33. A reason in favour of referral might be that the Chamber judgment touches on a
(relatively new) field of law which has not previously been examined by the Court,
and/or which is socially and politically sensitive. In these cases it is frequently felt
that guidance is needed from the Court’s enlarged formation on issues which, on
account of their original character and the debate they generate in society and the
media, should be subjected to the most careful scrutiny. Thus, the Grand Chamber
may be given the opportunity to adapt the existing case-law to new situations and/or
to develop new principles, having regard to the possible implications for future,
similar cases.

34. For instance, “new issues” were raised in the following cases:

– Big Brother Watch and Others v. the United Kingdom (nos. 58170/13,
62322/14 and 24960/15) and Centrum för Rättvisa v. Sweden (35252/08):
sharing with foreign States of intelligence obtained through secret surveillance
schemes involving bulk interception of external communications;

– Selahattin Demirtaş v. Turkey (no. 2) (no. 14305/17): effects of the continued

pre-trial detention of a member of parliament on the proper performance of his
parliamentary duties;

– Bărbulescu v. Romania (no. 61496/08): collection by an employer of an

employee’s personal data in the workplace and use of such data to justify the
employee’s dismissal;

28
This provision refers to Article 44 § 2 of the Convention, which provides: “The judgment of a
Chamber shall become final (a) when the parties declare that they will not request that the case be
referred to the Grand Chamber; or (b) three months after the date of the judgment, if reference of the
case to the Grand Chamber has not been requested; or (c) when the panel of the Grand Chamber rejects
the request to refer under Article 43.”
29
For examples of pilot judgments that have become final without the intervention of the Grand
Chamber, see, inter alia, the final Chamber judgments in the following cases: Sukachov v. Ukraine, no.
14057/17, 30 January 2020 (inadequate conditions of pre-trial detention); Rezmiveș and Others v.
Romania, nos. 61467/12, 39516/13, 48231/13 and others, 25 April 2017 (structural dysfunction specific
to the Romanian prison system); Varga and Others v. Hungary, nos. 14097/12, 45135/12, 73712/12
and others, 10 March 2015 (dysfunction in the Hungarian prison system leading to a recurrent
structural problem of inadequate conditions of detention); Neshkov and Others v. Bulgaria, nos.
36925/10, 21487/12, 72893/12 and others, 27 January 2015 (structural problem within the Bulgarian
prison system, justifying a pilot-judgment procedure on account of the seriousness and persistence of
the problems observed); Torreggiani and Others v. Italy, nos. 43517/09, 46882/09, 55400/09 and
others, 8 January 2013 (structural and systemic nature of prison overcrowding in Italy); Ananyev and
Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012 (dysfunction in the prison system
leading to a recurrent structural problem of inadequate conditions of detention); and Gerasimov and
Others v. Russia, nos. 29920/05, 3553/06, 18876/10 and others, 1 July 2014 (delayed enforcement of
domestic judicial decisions imposing obligations in kind).

15
– N.D. and N.T. v. Spain (nos. 8675/15 and 8697/15): immediate and forcible
return of aliens from a land border following an attempt by a large number of
migrants to cross it in an unauthorised manner and en masse;

– Z.A. and Others v. Russia (nos. 61411/15, 61420/15, 61427/15 and others):
long-term confinement of asylum-seekers in an airport transit zone;

– Ilias and Ahmed v. Hungary (no. 47287/15): confinement of asylum-seekers in

a transit zone at the land border between two member States of the Council of
Europe;

– Lekić v. Slovenia (no. 36480/07): lifting of the corporate veil by the State in
order to ensure stability in the commercial market and financial discipline;

– Naït-Liman v. Switzerland (no. 51357/07): universal jurisdiction of the civil

courts in relation to torture;

– Avotiņš v. Latvia (no. 17502/07): mutual recognition mechanisms founded on

the principle of mutual trust between the member States of the European
Union and designed to be applied virtually automatically;

– Delfi AS v. Estonia (no. 64569/09): duties and responsibilities of an Internet

news portal as regards comments made by users on material published on the
portal;

– Karácsony and Others v. Hungary (no. 42461/13 and 44357/13): scope of

parliamentary autonomy and procedural safeguards applicable in disciplinary
proceedings instituted against members of parliament for conduct deemed
gravely offensive to parliamentary order;

– Leyla Şahin v. Turkey (no. 44774/98): ban on wearing the Islamic headscarf in
higher-education institutions;

– Evans v. the United Kingdom (no. 6339/05): dispute over the implantation of
an embryo following the withdrawal of consent by the male gamete provider;

– D.H. and Others v. the Czech Republic (no. 57325/00): discriminatory

treatment of Roma children in the field of education;

– Dickson v. the United Kingdom (no. 44362/04): right of access to artificial

insemination for prisoners;

– S.H. and Others v. Austria (no. 57813/00): in vitro fertilisation;

– Gillberg v. Sweden (no. 41723/06): conviction for refusal to disclose medical

research material.

16
(g) Cases raising a “serious issue of general importance”

35. A sub-group of the category of cases mentioned in section (f) above is that of
cases which, without addressing a “new” field of law, raise an important issue at
European or global level. Examples of cases of this kind may be the following:

– Big Brother Watch and Others v. the United Kingdom (nos. 58170/13,
62322/14 and 24960/15) and Centrum för Rättvisa v. Sweden (35252/08)
concerning the bulk interception of communications in a national security
context and intelligence sharing with foreign States;

– Kurt v. Austria (no. 62903/15), concerning domestic violence and the State’s
obligation to protect potential victims;

– S.M. v. Croatia (no. 60561/14), concerning human trafficking and forced

prostitution;

– Bărbulescu v. Romania (no. 61496/08), concerning the protection of

employees’ personal data gathered by the employer in the workplace;

– Svinarenko and Slyadnev v. Russia (nos. 32541/08 and 43441/08), concerning

the holding of defendants in a metal cage during their trial;

– Avotiņš v. Latvia (no. 17502/07), concerning mechanisms for mutual

recognition of court decisions between member States of the European Union;

– Delfi AS v. Estonia (no. 64569/09), concerning the duties and responsibilities

of Internet news portals as regards offensive comments left by users on
published material;

– Muršić v. Croatia (no. 7334/13), concerning the minimum personal space to

be allocated to a prisoner in a multi-occupancy cell;

– Khlaifia and Others v. Italy (no. 16483/12), concerning the issue of collective
expulsions of migrants in the context of the 2011 migration crisis, when the
events surrounding the “Arab Spring” led to a mass influx of migrants and
heightened tension in the host States;

– Paposhvili v. Belgium (no. 41738/10), concerning the issue of the expulsion of

seriously ill individuals and whether humanitarian considerations prevailed
over other interests in preventing such expulsions;

– Medvedyev and Others v. France (no. 3394/03), concerning the key issue of
the fight on the high seas against drug trafficking and other crimes;

– Mangouras v. Spain (no. 12050/04), about the protection of the marine

environment from pollution;

– D.H. and Others v. the Czech Republic (no. 57325/00), Aksu v. Turkey
(nos. 4149/04 and 41029/04) and Oršuš and Others v. Croatia (no. 15766/03),

17
 touching on the topical issue of protection of Roma minorities in today’s
Europe.

(h) Cases with significant repercussions

36. Finally, some cases are referred to the Grand Chamber both because of the
complexity of the legal issues they raise and because of the serious implications for
the State concerned. These may stem from the identity of the applicant or from the
fact that the application concerns matters which are at the centre of a sensitive
national, European or global debate. These cases generally relate to historical,
geopolitical or religious issues. They may also concern a specific incident or crime
that has attracted exceptional media attention.

37. The following are examples of such cases:

– Navalnyy v. Russia (nos. 29580/12, 36847/12, 11252/13 and others),

concerning the arrest on seven occasions, pre-trial detention and conviction of
an opposition leader for taking part in peaceful public assemblies;

– Ilnseher v. Germany (nos. 10211/12 and 27505/14), concerning the preventive

detention system in Germany; the case had significant consequences for that
State as it raised doubts as to the compatibility with the Convention of the new
preventive system introduced in the wake of the leading judgment in M. v.
Germany, delivered in 2009 by a Chamber of the Court;

– Selahattin Demirtaş v. Turkey (no. 2) (no. 14305/17), concerning the

constitutional amendment of 20 May 2016 that had resulted in the lifting of
parliamentary immunity, and the initial and continued pre-trial detention of
one of the co-chairs of the HDP (Peoples’ Democratic Party), a pro-Kurdish
political party which in 2015 had passed the threshold for representation in the
National Assembly, becoming the second largest opposition party;

– Merabishvili v. Georgia (no. 72508/13), concerning the pre-trial detention of a

former Prime Minister and leader of the largest opposition party (the UNM),
chiefly for the purpose of gathering information on matters unrelated to the
offence of which he was suspected;

– Big Brother Watch and Others v. the United Kingdom (nos. 58170/13,
62322/14 and 24960/15) and Centrum för Rättvisa v. Sweden (35252/08):
brought in the wake of revelations by Edward Snowden, a former contractor
with the United States National Security Agency, about surveillance schemes
and intelligence sharing between the United States and United Kingdom
intelligence services;

– Refah Partisi (the Welfare Party) and Others v. Turkey (nos. 41340/98,
41342/98, 41343/98 and 41344/98), concerning the dissolution of a political
party which after the 1995 general election was the largest party in Turkey,
with a total of 158 seats (out of 450) in the Grand National Assembly, and
which had come to power in June 1996 by forming a coalition government;

18
 – Öcalan v. Turkey (no. 46221/99), in which, prior to his arrest, the applicant
was the leader of the PKK (Workers’ Party of Kurdistan);

– Leyla Şahin v. Turkey (no. 44774/98), concerning the ban on wearing the
Islamic headscarf in higher-education institutions;

– Ramirez Sanchez v. France (no. 59450/00), in which the applicant, who

claimed to be a revolutionary by profession, was held responsible for a series
of terrorist attacks in France;

– Yumak and Sadak v. Turkey (no. 10226/03), concerning the compatibility with
Article 3 of Protocol No. 1 of the imposition of an electoral threshold of 10%
in parliamentary elections;

– Gäfgen v. Germany (no. 22978/05), concerning a nationally well-known case

of kidnapping and murder;

– Lautsi and Others v. Italy (no. 30814/06), concerning the presence of religious
symbols (in particular, crucifixes) in classrooms;

– Giuliani and Gaggio v. Italy (no. 23458/02), concerning the killing of a

demonstrator by a police officer during the demonstrations on the fringes of
the G8 summit in Genoa in July 2001.

38. It should be clarified that the above distinctions are made in order to provide, in
outline form, a better understanding of the Panel’s practice and should not be seen as
rigid or mutually exclusive. A case referred to the Grand Chamber may also fall
within more than one of the categories described above30 or “in between” some of
them. Moreover, referral may sometimes be granted for a number of reasons, none of
which would be decisive if taken alone. In connection with this, it is worth noting that
the scarcity of case-law on a particular Convention provision, although not per se
decisive, may be a factor in favour of referring the case to the Grand Chamber.31

V. REQUESTS THAT ARE IN PRINCIPLE REJECTED

39. The Panel has developed the practice of systematically rejecting referral requests
which challenge:

(a) Decisions by the Chamber to declare a complaint inadmissible

30
It can be argued, for instance, that the case of Selahattin Demirtaş v. Turkey (no. 2) (cited above) fell
into both categories (d) and (h), Öcalan (cited above) fell into both categories (b) and (h), while Lautsi
and Others belonged to both (f) and (h).
31
See, for instance, Garib v. the Netherlands (no. 43494/09), which was of particular interest since it
was the first case to deal in detail with Article 2 of Protocol No. 4; the Grand Chamber provided an
authentic interpretation of the expression “freedom to choose [one’s] residence” (first paragraph of that
Article), and the conditions in which that freedom could be restricted (third and fourth paragraphs). For
an older example, see Mangouras v. Spain (no. 12050/04), concerning, inter alia, the “guarantees to
appear for trial” by which, in accordance with Article 5 § 3 of the Convention, release pending trial
may be conditioned. Before the Grand Chamber judgment, the Court’s case-law was scarce on this
issue.

19
40. Applicants should be reminded that according to the Court’s settled case-law, the
“case” referred to the Grand Chamber necessarily embraces all aspects of the
application previously examined by the Chamber in its judgment. The “case” referred
to the Grand Chamber is the application as it has been declared admissible, as well as
the complaints that have not been declared inadmissible (see S.M. v. Croatia [GC],
no. 60561/14, § 216, 25 June 2020, and the authorities cited therein). This means that
the Grand Chamber must examine the case in its entirety in so far as it has been
declared admissible; it cannot, however, examine those parts of the application which
have been declared inadmissible by the Chamber (see, for instance, Kurić and Others
v. Slovenia [GC], no. 26828/06, §§ 234-35, ECHR 2012 (extracts), and Ramos Nunes
de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 87, 6 November
2018).

(b) Awards made by the Chamber under Article 41 of the Convention

41. The sums awarded by the Chamber under Article 41 of the Convention by way of
redress for pecuniary and/or non-pecuniary damage take into account the nature of the
violation found and may be seen as a factual assessment. Moreover, in many cases the
Chamber decides the amount of just satisfaction on an “equitable basis”, and such an
assessment, by definition, does not lend itself to a review by the Grand Chamber.

42. An exception to this principle may be found in the case of Guiso-Gallisay v. Italy
(no. 58858/00), where the main question submitted to the Grand Chamber was that of
the pecuniary damage sustained by the applicants following the unlawful
expropriation of their land. However, in that case the Grand Chamber was not called
upon to review the assessment of the amount of the applicants’ losses, but to clarify
the criteria governing the calculation of those losses (and indeed it came to the
conclusion that it was appropriate to change the Court’s position, to avoid the
application of the Papamichalopoulos case-law to cases of constructive expropriation
and to adopt a new approach32). There was therefore a “serious question affecting the
interpretation of [Article 41 of] the Convention”.33

(c) The Chamber’s assessment of the facts

43. As indicated above, the Grand Chamber should not be seen as an appeal court
with the function of correcting errors of fact allegedly made by the Chamber. If that
were the case, there would be no need for filtering by the Panel, and the parties would
have direct access to the Grand Chamber whenever the establishment of a fact by the
Chamber ran counter to their interests. Thus, for instance, it could be said that a State
would have very little prospect of success in requesting referral with a view to
challenging the Chamber’s finding that the use of force was imputable to agents of the
State.

32
See Guiso-Gallisay v. Italy [GC], no. 58858/00, §§ 102-07, 22 December 2009.
33
See also Arvanitaki-Roboti and Others v. Greece [GC], no. 27278/03, 15 February 2008, and
Kakamoukas v. Greece [GC], no. 38311/02, 15 February 2008, in which the main question addressed
by the Grand Chamber was the amount of the award to be made in cases of excessive length of
proceedings.

20
(d) Lack of significant shortcomings in the relevant proceedings and the
decision-making process at national level

44. In the context of cases where States have procedural obligations to render
effective the rights secured in Articles 2, 3 and 4 of the Convention in particular, the
Grand Chamber has emphasised that it is not required to rule on allegations of errors
or isolated omissions on the part of the investigating authorities, but only on
significant shortcomings in the proceedings and the relevant decision-making
process, namely those that might undermine the investigation’s capability of
establishing the circumstances of the case or the persons responsible (see, for
example, S.M. v. Croatia [GC], no. 60561/14, § 320, 25 June 2020, in the context of
the States’ procedural obligations under Article 4 of the Convention in combating
human trafficking and forced prostitution). Accordingly, it can be presumed that in
cases where procedural obligations are at stake, a referral request has little chance of
succeeding if the proceedings and the decision-making process at national level do
not disclose any shortcomings that might undermining the investigation’s capability
of establishing the circumstances of the case or the persons responsible.

(e) Application of well-established case-law

45. Unless the Panel considers that it is time for development of the Court’s case-law
(see section IV (b) above), judgments entailing “normal” application of well-
established case-law are in principle not referred to the Grand Chamber.34

46. Moreover, it should be emphasised that in principle the case will not be referred
to the Grand Chamber if the main legal question raised concerns specific legislation
peculiar to one country only and is not likely to be of interest to the other High
Contracting Parties, thus not raising an issue of general interest at European level.35

47. Likewise, a request for referral by a government contesting the application by the
Chamber of the requirements laid down in Article 35 § 1 of the Convention with
regard to the exhaustion of domestic remedies and the calculation of the six-month
time-limit has strong chances of being rejected because the question, although
important for the respondent State, is not likely to be of general interest at European
level to merit treatment by the Grand Chamber.

34
See, for instance, the “Chechen cases”, in which, without submitting any new information, the
Government essentially challenged the role of the Court in assessing the existence of a substantive or
procedural violation of Article 2 of the Convention: see, inter alia, Shokkarov and Others v. Russia,
no. 41009/04; Amuyeva and Others v. Russia, no. 17321/06; Matayeva and Dadayeva v. Russia,
no. 49076/06.
35
See, for example, P.N. v. Germany, no. 74440/17, where the main issue raised by the applicant in his
request for referral to the Grand Chamber of the judgment delivered on 11 June 2020 by a Chamber of
the Court related to the accessibility and foreseeability of the national regulations that had formed the
legal basis for a police order for the collection and storage of personal data for the purposes of an
investigation; the Panel of the Grand Chamber rejected the referral request on 16 November 2020. See
also RTBF v. Belgium, no. 50084/06, where the Chamber judgment of 29 March 2011 concerned the
existence of a legal basis, in Belgian law and in the light of the case-law of the Belgian Court of
Cassation, for prohibiting the broadcasting of television programmes. The Government’s referral
request of 29 June 2011 was rejected by the Panel of the Grand Chamber on 15 September 2011.

21
VI. WORKING PROCEDURES OF THE PANEL OF THE GRAND CHAMBER

48. A meeting of the Panel of the Grand Chamber is organised when a sufficient
number of requests for referral are ready for examination. On average, the Panel
meets at intervals of six to eight weeks (taking into account periods of judicial recess),
thus keeping the number of referral requests on the agenda of each meeting to a
reasonable level. The dates are scheduled by the President in advance for a six-month
period.

49. Before each meeting, all the members receive a file containing the referral
requests and the judgments concerned.

50. The procedure before the Panel is not adversarial. All requests for referral are
examined solely on the basis of the file, that is to say, the Chamber judgment and the
contents of the request (or requests, if both parties request the referral of the case
within the three-month time-limit). The Panel does not ask for observations on a
referral request that has been submitted to it and does not take into consideration any
unsolicited observations (for example, arguments in favour of rejecting the request)
that may have been submitted by the opposing party. Nor can any third-party
comments be submitted to the Panel, even if the third party in question had been
granted leave to participate in the proceedings before the Chamber. Similarly, the
Panel will refuse to consider any unsolicited “third-party interventions” that may be
submitted by other States wishing to support a request by the respondent Government
for the referral of a case.

51. The members of the Panel of the Grand Chamber examine whether the case
satisfies the criteria set forth in Article 43 § 2 of the Convention and accordingly
warrants referral to the Grand Chamber because it “raises a serious question affecting
the interpretation or application of the Convention or the Protocols thereto, or a
serious issue of general importance”. They must not seek to set out their own views
on the merits of the case, or vote to refer a case to the Grand Chamber simply because
they disagree with the Chamber’s reasoning or the final outcome of the case before
the Chamber. The President (who, in accordance with usual practice, is the last to
speak) asks the judges of the Grand Chamber Panel to indicate whether they consider
that the request for referral should be accepted. If it is clear that the five judges of the
Panel are unanimous, there is no vote; if not, a vote is held and the decision is taken
by a majority.

If an initial exchange of views reveals a division among the Panel as to the decision
that should be taken, the President may also ask the members of the Panel to express
their opinions during a second discussion before proceeding with the final vote.36

52. The results of meetings of the Grand Chamber Panel are circulated among all the
judges of the Court by email, and the parties are notified by means of a letter
indicating the names of all the members of the Panel that gave the decision. Details of

36
This recommendation was made in 2020 by a working group of the Court which examined the
procedure before the Panel of the Grand Chamber, and was approved by the plenary Court on 2nd June
2021.

22
how each member of the Panel voted and whether the Panel’s decision was taken
unanimously or by a majority are confidential.

53. It is worth pointing out that where a request for referral is based on the discovery
of a new fact which, by its nature, might have had a decisive influence on the outcome
of a case that has already been determined, the Panel may decide to refuse referral and
to forward the parties’ observations to the Chamber that delivered the judgment in
question, so that the Chamber can in turn examine whether the conditions for revising
its judgment are fulfilled. In accordance with Rule 80 of the Rules of Court, the
“discovery of a fact which might by its nature have a decisive influence and which,
when a judgment was delivered, was unknown to the Court and could not reasonably
have been known” to at least one of the parties is a reason for requesting revision of
the judgment in question.

54. The Panel declares inadmissible any referral requests which:

(a) challenge the Chamber’s decision declaring a complaint inadmissible (see

section V (a) above); or

(b) do not comply with the three-month rule set out in Article 43 § 1 of the
Convention.

In this connection, it is to be noted that the Panel has consistently held that the period
of three months within which referral may be requested starts to run from the day
after the delivery of the Chamber judgment,37 irrespective of whether the party
concerned may have learned about it at a later stage. It expires three calendar months
later and is not interrupted by bank holidays or periods of judicial recess. Thus, for
example, if a Chamber judgment is delivered on 10 January, the time-limit set forth in
Article 43 § 1 of the Convention expires on 10 April at midnight (Central European
Time). The request for referral should reach the Registry of the Court before the
expiry of the relevant period (see Kovačić and Others v. Slovenia [GC], nos.
44574/98, 45133/98 and 48316/99, § 197, 3 October 200838). Where no request has
been received by the Registry, the judgment will become final on the same date at
midnight.

VII. COMPOSITION OF THE PANEL OF THE GRAND CHAMBER

55. Rule 24 § 5 of the Rules of Court provides:

“(a) The panel of five judges of the Grand Chamber called upon to consider a referral
request submitted under Article 43 of the Convention shall be composed of
­ the President of the Court. If the President of the Court is prevented from sitting,
he or she shall be replaced by the Vice-President of the Court taking precedence;

37
This approach is consistent with the one followed by the Court in relation to the six-month rule in
Article 35 § 1 of the Convention (see Otto v. Germany (dec.), no. 21425/06, 10 November 2009, and
Praha v. the Czech Republic (dec.), no. 38354/06, 28 September 2010).
38
See also Rule 73 § 1 of the Rules of Court, which provides: “… any party to a case may
exceptionally, within a period of three months from the date of delivery of the judgment of a Chamber,
file in writing at the Registry a request that the case be referred to the Grand Chamber” (emphasis
added).

23
 ­ two Presidents of Sections designated by rotation. If the Presidents of the
Sections so designated are prevented from sitting, they shall be replaced by the
Vice-Presidents of their Sections;
­ two judges designated by rotation from among the judges elected by the
remaining Sections to serve on the panel for a period of six months;
­ at least two substitute judges designated in rotation from among the judges
elected by the Sections to serve on the panel for a period of six months.
(b) When considering a referral request, the panel shall not include any judge who
took part in the consideration of the admissibility or merits of the case in question.
(c) No judge elected in respect of, or who is a national of, a Contracting Party
concerned by a referral request may be a member of the panel when it examines that
request. An elected judge appointed pursuant to Rules 2939 or 3040 shall likewise be
excluded from consideration of any such request.
(d) Any member of the panel unable to sit, for the reasons set out in (b) or (c) shall be
replaced by a substitute judge designated in rotation from among the judges elected
by the Sections to serve on the panel for a period of six months. ...”

56. In practice, depending on the number of referral requests on the agenda for each
meeting of the Grand Chamber Panel, one or more formations of the Panel sit to
decide on the requests. Each formation is made up of five members, including: the
President of the Court or, if he or she is unable to sit (for example, because he or she
is the national judge or was a member of the Chamber that delivered the judgment),
the Vice-President of the Court taking precedence, two Section Presidents designated
from among those who did not take part in the consideration of the admissibility or
merits of the case in question, and two judges designated from among those who have
been elected by their respective Sections to serve on the Panel for a period of six
months.

57. The current system excludes from the Panel any judges who took part took part in
the consideration of the admissibility and/or merits of the case in question, including
the national judge (whether serving, ad hoc or appointed as a common-interest judge).

58. The Panel’s composition is based on rotation between the different Section
Presidents and the judges designated as ordinary members, and ensures a balance
between the different Sections, each of which – except the one that delivered the
judgment whose referral is being requested – is represented on the Panel, other than in
exceptional cases. The participation of the President of the Court and the Section
Presidents for an unlimited duration while they hold their respective offices ensures a
certain degree of continuity that helps foster coherence and consistency in the Panel’s
practice.

39
Rule 29 – Ad hoc judges.
40
Rule 30 – Common interest.

24
 APPENDIX I: Extracts from the 2016 report “The Interlaken
process and the Court”41

Conclusions of the Plenary Court on the giving of reasons when the Grand Chamber
panel rejects a referral request

In its examination of the point, the Court was mindful of the case-law under Article 6
concerning the reasoning of judicial decisions.42 This lays down the general
proposition that court judgments should adequately state the reasons on which they
are based. One may link this duty to the principles of transparency, legitimacy and
foreseeability that are inherent in the rule of law. Yet it is also established in the
Convention case-law that the extent of the duty to give reasons may vary according to
the nature of the decision in question. While the Article 43 procedure is not truly
comparable to an appeal, it is not without relevance to note that the case-law permits
an appellate court to simply endorse, without further reasoning, the decision given by
a lower decision. Where the question for decision is leave to appeal, the Court has
held that the Convention does not require that refusal of leave be subject to a
requirement to give detailed reasons.43

The Court has concluded that, in light of the text of the Convention and of the
intrinsic nature of the referral procedure, it would be neither appropriate nor advisable
to introduce a practice of giving reasons for negative decisions of the Grand Chamber
Panel. The explanation for this conclusion is set out in the following paragraphs.

(i) The text of the Convention

The procedure for referring cases to the Grand Chamber was introduced into the
Convention by Protocol No. 11. The parties may request referral “within a period of
three months from the date of the Chamber judgment” “in exceptional cases” (Article
43 § 1 of the Convention). The Panel “shall accept the request if the case raises
serious questions affecting the interpretation or application of the Convention or the
Protocols thereto, or a serious issue of general importance” (Article 43 § 2). If the
Panel rejects the request, the judgment of the Chamber becomes final (Article 44 § 2
(c)). If the Panel accepts the request, the Grand Chamber shall decide the case by
means of a judgment (Article 43 § 3).

It is not envisaged either in the text of the Convention, or in the Explanatory Report,
that the Panel should give reasons for its decisions. Article 45 § 1 only provides that
“Reasons shall be given for judgments as well as for decisions declaring applications
admissible or inadmissible.” Paragraph 105 of the Explanatory Report, which in
somewhat broader terms affirms that Article 45 “lays down a general rule that all
judgments and most decisions of the Court must be reasoned”, states expressly “[t]his

41
The full version of this report is available online in English:
[Link] and in French:
[Link]
42
As summarised in Hansen v. Norway, no. 15319/09, §§ 71-74, 2 October 2014.
43
See Hansen, cited above, §§ 80-81.

25
Article does not concern decisions taken by the Panel of five judges of the Grand
Chamber in accordance with Article 43.” Accordingly, there is no support in the
Convention or in the Explanatory Report for any proposition that the Panel should
give reasons. On the contrary, and in contrast to the filtering procedure that operated
under Protocol No. 9,44 it is clear that the Panel was deliberately exempted from any
such requirement. Neither Protocol No. 14 or 15 brought any change here.

(ii) The nature of the procedure

For the Panel to give reasons might seem difficult to reconcile with the special
features of the Panel procedure, seen in the context of the proceedings as a whole, and
its particular role as an intermediary filtering body, between the Chamber and the
Grand Chamber, exercising a wide discretion based on broadly defined criteria.

The Panel decision in effect determines whether the Chamber judgment should
become final, or if it should be for the Grand Chamber to give final judgment. Either
way, whether final judgment is given by a Chamber or the Grand Chamber, Article 45
§ 1 ought to be interpreted to mean that the reasons stated for the purposes of this
provision are to be given in the judgment itself. It is important that those reasons not
only be adequate for disposing of the particular case but also for fulfilling the Court’s
wider role of providing guidance on the interpretation and application of the
Convention (Article 32 of the Convention), a role that is not reserved for the Grand
Chamber but also assumed by Chambers.

If the Panel were to provide purely formal reasons, i.e. simply state that the case in
question did not fulfil the criteria of Article 43, it would be of very limited value. If
instead the Panel were to state specific reasons for its decision to reject a referral
request, one might expect reasoning involving an assessment of the nature of the
subject matter of the case, whether it is fact-specific or one of principle, and of the
seriousness of the issues raised – whether there is a “serious question affecting the
interpretation or application of the Convention” or a “serious issue of general
importance” (Article 43). That assessment is different from the one involving a
determination of admissibility and merits, for which reasons should be given pursuant
to Article 45. The test and the criteria are different in that those which apply in the
Article 43 context involve an element of discretion in assessing the Convention case-
law which does not lend itself to being set out with the same conclusiveness as
reasoning provided for the purposes of Article 45. In short, the exercise is different in
nature from the one referred to under Article 45.

However, it is inevitable that the Panel scrutinises the reasoning given by the
Chamber and reaches its decision in the light of its agreement or disagreement with
the majority or the minority, as the case may be, on the substance of the case and of
its evaluation of the potential added-value of examination by the Grand Chamber and
so on.

44
Protocol No. 9 (signed in 1990, in force for several States 1994-1998) which introduced a procedure
to filter requests by individual applicants to refer their case to the Court. The Rules of Court governing
that procedure provided that where the Panel declined the request, a briefly reasoned decision was
given to the applicant.

26
In so far as the reasons for the Panel’s rejection of a referral request could be seen to
overlap with the reasoning of a Chamber judgment, it seems likely to bring a series of
consequences.

To start with, the reasons could be perceived as adding something to those already
given by the Chamber for its judgment which becomes final by virtue of the Panel’s
decision. Although it may be difficult to foresee what such an addition would actually
entail in practice, it is probable that it would in some way affect the integrity of the
Chamber judgment. This could be the case where the Panel identifies which of the
referral grounds were not fulfilled, or even if it expressly endorses the Chamber
judgment. In order to appreciate the jurisprudential value of a Chamber judgment, the
legal user could not limit his or her enquiry to studying the reasoning stated in the
judgment but would have to look into a source outside the judgment, namely the
reasoning provided by the Panel for rejecting the referral request. There is thus a real
danger of the Panel’s reasoning diminishing and even undermining the reasoning of
the Chamber’s final and legally binding conclusion. It would give the Panel a power
which goes beyond the role of merely acting as a filter.

Moreover, the party which was unsuccessful before the Chamber might then see the
referral request as an opportunity for obtaining more reasons from the Panel that
could weaken the Chamber judgment. Such prospects may lead to more referral
requests being brought. The successful party might be justified in considering it not
“fair” that such an opportunity is given without adversarial argument. The Panel
procedure, in its current form, consists of a summary examination of the referral
request in the light of the Chamber judgment and the case-file as it stands, without
any adversarial argument. If reasons were to be given for the rejection of a referral
request, it might be necessary in the interest of the proper administration of justice to
consider allowing adversarial pleadings. This would clearly be at the expense of
efficient filtering.

The fact Protocol No. 16 provides that the panel shall give reasons if it declines to
accept a request for an advisory opinion coming from a domestic does not alter the
analysis. That context is entirely different from Article 43, and the concerns set out
above do not arise.

In conclusion, for the panel to adopt a practice of giving reasons would risk creating
confusion about the meaning of the Chamber judgment. It further raises a number of
other procedural issues likely to make the procedure much more burdensome, which
would outweigh the modest advantage that a reasoned panel decision would represent
for the requesting party.

27
APPENDIX II: Statistics on the number of referral requests accepted
or rejected by the Panel of the Grand Chamber

28
Distribution of the Grand Chamber’s caseload: comparison between the number of cases
referred by the Panel and following relinquishment of jurisdiction

29
APPENDIX III: Cases referred to the Grand Chamber by the Panel
since the entry into force of Protocol No. 11 to the Convention

The table may be consulted via this link.

30