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Applicability of Article 6 Safeguards to Interim Measures and Injunction Proceedings ratione materiae

Jasna Omejec ; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska

Puni tekst: hrvatski pdf 509 Kb

str. 683-694

preuzimanja: 718



In the case of Micallef v. Malta (judgment [GC], no. 17056/06, 15 October 2009) the European Court of Human Rights (hereinafter referred to as “the Court”) no longer finds it justified to automatically characterise injunction proceedings as non-determinative of civil rights or obligations. Nor is the Court convinced that a defect in such proceedings would necessarily be remedied at a later stage, namely, in proceedings on the merits governed by Article 6 since any prejudice suffered in the meantime may by then have become irreversible and with little realistic opportunity to redress the damage caused, except perhaps for the possibility of pecuniary compensation.
In the Micallef judgment the Court thus considered that the fact that interim decisions which also determine civil rights and obligations were not protected by Article 6 under the Convention calls for a new approach, and that a change in the Court's case law is necessary. However, not all interim measures determine “civil rights and obligations” for the purpose of Article 6. So, the applicability of Article 6 will depend on whether certain conditions are fulfilled.
First, the right at stake in both the main and the injunction proceedings should be “civil” within the autonomous meaning of that notion under Article 6 of the Convention. Second, the nature of the interim measure, its object and purpose as well as its effects on the right in question should be scrutinised. Whenever an interim measure can be considered effectively to determine civil right or obligation at stake, notwithstanding the length of time it is in force, Article 6 will be applicable.
However, in exceptional cases – where, for example, the effectiveness of the measure sought depends upon a rapid decision-making process – it may not be possible immediately to comply with all of the requirements of Article 6. Thus, in such specific cases, while the independence and impartiality of the tribunal or the judge concerned is an indispensable and inalienable safeguard in such proceedings, other procedural safeguards may apply only to the extent compatible with the nature and purpose of the interim proceedings at issue. In any subsequent proceedings before the Court, it will fall to the Government to establish that, in view of the purpose of the proceedings at issue in a given case, one or more specific procedural safeguards could not be applied without unduly prejudicing the attainment of the objectives sought by the interim measure in question.

Ključne riječi

European Court of Human Rights, Article 6 § 1 of the Convention, interim measures, Micallef test

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