THE PRINCIPLE OF “DE MINIMIS NON CURAT PRAETOR” IN THE PROTECTION SYSTEM OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS
Abstract
The role of the Strasbourg Court is defined in Art. 19 ECHR: it has to ensure the observance of the engagements undertaken by the member states in the European Convention on Human Rights and the Protocols thereto. In doing so the Court may receive in particular individual petitions under Art. 34 ECHR and has to decide upon them whether there was a violation of the Convention. The Court confines itself as far as possible to examining the issues raised by the particular case before it, it does not see its task to review the relevant legislation in the abstract. State applications are extremely rare and can be neglected in this context – they will never be considered as minima. The Court decides on an application by a judgment which is binding under public international law for the state which was a party in that case (Art. 46 I ECHR) and the execution of which is supervised by the Committee of Ministers of the Council of Europe (Art. 46 II ECHR).
The Court by its judgment protects individuals whose Convention rights were violated. The right to individual applications and to have a decision of the Court on it is the core of the Convention system. It is true that the principle of subsidiarity underlying the Convention means that in the first line it is the duty of the authorities and in particular the courts of the member states to secure the rights guaranteed by the Convention (Art.1 ECHR). But it is also true that they often fail to do so. It follows that in many cases the Strasbourg Court is the only institution which assures protection of individual rights. That may be so in cases of grave violations of human rights by member states for instance in applications concerning the right to life or the prohibition of torture. And that is often so in less grave cases, in particular in cases where the right of acces to a national court was violated or where the courts do not decide within reasonable time so that Art. 6 I ECHR was violated.
