Resumen Constitucional CASO - MATERIA

the Court concludes that the breaches of the domestic law that it has established above,
inherently tarnished the impugned appointment procedure. As a consequence of the first

breach, the recommendation of candidates for judicial appointment to the Chamber of
Extraordinary Review and Public Affairs – a condition sine qua non for appointment by the
President of Poland – was entrusted to the NCJ, a body that lacked sufficient guarantees of
independence from the legislature and the executive.
Mix Materia - Casos:
1. European Convention of Human Rights:
Protocol: A protocol to the Convention is a text which adds one or more rights to the
original Convention or amends certain of its provisions. Protocols which add rights to the
Convention are binding only on those States that have signed and ratified them; a State
that has merely signed a protocol without ratifying it will not be bound by its provisions.
To date, 16 additional protocols have been adopted.
The Convention evolves especially by means of the interpretation of its provisions by the
European Court of Human Rights. Through its case-law the Court has made the
Convention a living instrument; it has thus extended the rights afforded and has applied
them to situations that were not foreseeable when the Convention was first adopted.
A. Protocol 11: Elimination of the Commission and individual applications directly to

the ECtHR.
B. Protocol 14:
- Amended the convention so that judges would be elected for a non-renewable
term of nine years, whereas previously judges served a six-year term with the
option of renewal.
- Amendments were also made so that a single judge could reject plainly
inadmissible applications, while prior to this protocol only a three judge committee
could make this final decision. In cases of doubt, the single judge refers the
applications to the Committee of the Court.
C. Protocol 15 (2013): introduces a reference to the principle of subsidiarity and the

doctrine of the margin of appreciation. It also reduces from six to four months the
time-limit within which an application may be made to the Court following the
date of a final domestic decision.
D. Protocol 16 (2013): allows the highest courts and tribunals of a State Party to
request the Court to give advisory opinions on questions of principle relating to the
interpretation or application of the rights and freedoms defined in the Convention
or the protocols thereto.
2. The European Court of Human Rights:
Composition: 46 judges, that are elected by the Parliamentary Assembly of the

Council of Europe from lists of three candidates proposed by each State.
 Criteria for office: high moral character, possess the qualifications required, or
be jurisconsults of recognized competence.
 Term: 9 years non – renewable.
 Independent from the state (even if it’s proposed by them)
 The Court always includes the “national judge” when it hears cases as a seven-
judge Chamber or a seventeen-judge Grand Chamber. It’s the president of the
Chamber. An ad hoc judge is appointed by the government concerned when the
national judge does not sit in the case because of inability, withdrawal or
exemption. In this case, it may be a judge adhoc because the national judge could
have previously acted in the case in any capacity. This is called withdrawal.
 Single judge formation: Manifestly inadmissible applications are examined by a

single judge.
 Committees: 3 judges. rule by a unanimous vote on the admissibility and merits

of cases that are already covered by well-established case-law of the Court.
 Chambers: 7 judges. Admissibility and merits.
 Grand Chamber (17 judges): The initiation of proceedings before the Grand
Chamber takes two different forms: referral and relinquishment.
1. Referral: After a Chamber judgment has been delivered, the parties may
request referral of the case to the Grand Chamber and such requests are
accepted on an exceptional basis. A panel of judges of the Grand Chamber
decides whether or not the case should be referred to the Grand Chamber
for fresh consideration. Plazo: 3 months.
2. Relinquishment: The Chamber to which a case is assigned can relinquish it
to the Grand Chamber if the case raises a serious question affecting the
interpretation of the Convention or if there is a risk of inconsistency with a
previous judgment of the Court.
Proceedings before the Court:
Subjects: The Convention makes a distinction between two types of application:

individual applications lodged by any person, group of individuals, company or
NGO having a complaint about a violation of their rights, and inter-State
applications brought by one State against another.
There are two main stages in the consideration of cases brought before the Court:
the admissibility stage and the merits stage.
Conditions of admissibility:
“ARTICLE 35: Admissibility criterio.
1. The Court may only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised rules of international law, and
within a period of four months from the date on which the final decision was
taken.
2. The Court shall not deal with any application submitted under Article 34 that:
(a) is anonymous; or
(b) is substantially the same as a matter that has already been examined by the
Court or has already been submitted to another procedure of international
investigation or settlement and contains no relevant new information.
3. The Court shall declare inadmissible any individual application submitted under
Article 34 if it considers that:
(a) the application is incompatible with the provisions of the Convention or the
Protocols thereto, manifestly ill-founded, or an abuse of the right of individual
application; or
(b) the applicant has not suffered a significant disadvantage, unless respect for
human rights as defined in the Convention and the Protocols thereto requires an
examination of the application on the merits.
4. The Court shall reject any application which it considers inadmissible under this
Article. It may do so at any stage of the proceedings.
- Principle of subsidiarity: Cases can only be brought to the Court after

domestic remedies have been exhausted; in other words, individuals
complaining of violations of their rights must first have taken their case
through the courts of the country concerned, up to the highest possible
level of jurisdiction. In this way the State itself is first given an opportunity
to provide redress for the alleged violation at national level.
- An applicant’s allegations must concern one or more of the rights defined

in the Convention.
- Time: Applications must also be lodged with the Court within 4 months
following the last judicial decision in the case, which will usually be a
judgment by the highest court in the country concerned. *Note: The
change from 6 to 4 months, entered into force on February 1, 2022.
- Jurisdiction of the Court:
o Ratio Personae: The violation which you complain about must have
been committed by the Respondent State in question or in some
way attributable to it. You may bring an application regardless of
your nationality, your immigration status or your legal capacity.
o Ratione loci: The violation which you complain about must have
occurred within the territorial jurisdiction of the Member State
concerned or in a territory effectively controlled by it. So, for
example, a respondent State may be responsible for the acts of its
diplomatic and consular staff abroad in the context of a diplomatic
mission, where they exert authority and control over individuals
outside the territory of the State.
o Ratione temporis:The acts or facts complained of must have
occurred after the date of entry into force of the Convention in the
respondent State in question. However, your application may be
declared admissible if the State caused the continuous situation
which began prior to ratification and persisted after that date. For
example, the Court has held that it had jurisdiction to decide on
disappearances which occurred some thirteen years prior to the
respondent State’s having recognised the right of individual
petition. Indeed, a disappearance is not an “instantaneous” act or
event. And therefore, the procedural duty to investigate potentially
continues as long as the fate of the disappeared person has not
been established, even if his death may be presumed.
- Ratione materiae (Article 35 § 3 of the Convention) : You must invoke a right

which is protected under the Convention and its Protocols, such as the right
to life or the right to an effective remedy. Your application may be
dismissed as incompatible on the grounds of the subject matter if, for
example, you claim a right to be issued with a driving licence, or the right to
enter or reside in a contracting State if you are not a national there. Your
complaint must fall within the scope of application of the right which you
invoke, such as the right to a fair trial, the right to private and family life, or
the right to protection of property. So, for example, the fair trial guarantees
within Article 6 of the Convention do not apply to asylum or deportation
proceedings, or most taxation proceedings. This is the allegation of the
Government in the case, given that it discuss about the applicability of
Article 6 and the existence of civil rights of the applicants.
- No significant disadvantage: This may be because of the insignificant

financial element to your claim if, for example, you complain about non-
enforcement of a judgment for EUR 34 or salary arrears for EUR 200.
Violation of the right must attain a minimum level of severity to warrant
consideration by an international court. There is a safeguard’ clause within
this criterion: the first applies where respect for human rights requires an
examination on the merits. Thus, in one case where the amount at stake
was only EUR 17, the Court held that a judgment of principle was needed
because this was the first case after a change in a national law.
- Manifestly iil – founded:

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the Court concludes that the breaches of the domestic law that it has established above,

inherently tarnished the impugned appointment procedure. As a consequence of the first

Mix Materia - Casos:

1. European Convention of Human Rights:

A. Protocol 11: Elimination of the Commission and individual applications directly to

C. Protocol 15 (2013): introduces a reference to the principle of subsidiarity and the

Composition: 46 judges, that are elected by the Parliamentary Assembly of the

 Single judge formation: Manifestly inadmissible applications are examined by a

 Committees: 3 judges. rule by a unanimous vote on the admissibility and merits

 Chambers: 7 judges. Admissibility and merits.

Proceedings before the Court:

Subjects: The Convention makes a distinction between two types of application:

“ARTICLE 35: Admissibility criterio.

- Principle of subsidiarity: Cases can only be brought to the Court after

- An applicant’s allegations must concern one or more of the rights defined

- Ratione materiae (Article 35 § 3 of the Convention) : You must invoke a right

- No significant disadvantage: This may be because of the insignificant

- Manifestly iil – founded:

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