Contents - Constitutional Court of Georgia

The European Courtof Human Rights is Fifty. Recent trends in the Court’s jurisprudence
Article 13. Right to an effective remedy
Giving direct expression to the States’ obligation to protect human rights first and foremost
within their own legal system, Article 13 establishes an additional guarantee for an
individual in order to ensure that he or she effectively enjoys those rights. The object of
Article 13 is to provide a means whereby individuals can obtain relief at national level for
violations of their Convention rights before having to set in motion the international machinery
of complaint before the Court. This provision was revived by the Kudła v. Poland
judgment of 26 October 2000 89 . This judgment thus gives Article 13 its rightful, prominent
place in the Convention system. It is, in my view, a line entirely consistent with the fundamental
aim of the Convention, namely to strengthen human rights protection at national
level. It is also essential for the survival of the Convention and its enforcement machinery
that wherever possible Convention issues be “repatriated” to the national authorities. I do
therefore think that Kudła points to the future, with the Court being prepared to take a
more expansive approach in respect of Article 13.
Article 14. Prohibition of discrimination
With so many judgments, it is exceedingly difficult to make a selection; there are many
others which merit attention. Let me just mention one final case because again it seemed
to take the Court’s case-law in a slightly new direction. This is the case of Thlimmenos v.
Greece, where the Court accepted for the first time explicitly that the guarantee under Article
14 prohibiting discrimination in the enjoyment of the rights and freedoms enshrined
in the Convention encompassed not only treating similarly people in similar situations but
also treating people in significantly different situations differently. In that case a Jehovah’s
witness had been denied access to the profession of chartered accountant because of a
previous criminal conviction. His conviction had resulted from his refusal to wear a uniform
as being contrary to his religious beliefs. The Court considered that a conviction for
refusing to wear a military uniform on religious or philosophical grounds could not imply
any dishonesty or moral turpitude likely to undermine the offender’s ability to exercise
the profession of chartered accountant. There was no objective and reasonable justification
for not treating the applicant differently from other persons convicted of a felony and
consequently the State should have introduced appropriate exceptions to the rule barring
persons convicted of a felony from the profession 90 .
The Nachova and Others v. Bulgaria judgment of 6 July 2005 is the first in which the
Court joined Article 2, under its procedural limb, with Article 14, in a case concerning
a so-called hate crime. “The Grand Chamber considers (…) that any evidence of racist
89 ECtHR (GC), Kudla v. Poland, judgment of 26 October 2000.
90 ECtHR (GC), Thlimmenos v. Greece, judgment of 6 April 2000, §§ 47-48.
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