Article 267(3) of the Treaty on the Functioning of the European Union requires the national court of last instance to make a preliminary reference to the ECJ on questions of interpretation of the Union law.
In case Köbler v Austria, C-224/01, the ECJ interpreted that if a national court of last instance refuses to make the preliminary reference, the interested party may sue the State before a respective national court of first instance.
This is exactly what has happened in case Tomas v Lithuania, 51226/09. When the national court of last instance refused to make the preliminary references, the State was sued for the violation of current Article 267(3) TFEU following the Köbler procedure. However the Lithuanian national courts declared the action inadmissible.
The next step was suing Lithuania for the violation of the Köbler procedure before the ECHR. On 12/04/2011 the single judge chamber (judge András Sajó) interpreted that the right to court (Article 6(1) of the European Convention of Human Rights) is not applicable to the Köbler procedure.
However, since this is a single judge chamber judgment, it is possible that this interpretation will not be applicable to future litigations.
European Court of Human Rights & UN Human Rights Committee blog of attorney Prof.S.Tomas ❑ Advokato prof.S.Tomo tinklaraštis apie Europos žmogaus teisių teismą ir JTO Žmogaus teisių komitetą ❑ Блог адвоката проф.С.Томаса о Европейском суде по правам человека и Комитете по правам человека ООН
21 avr. 2011
Continuation of Köbler at the ECHR
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I can't find the case on the ECtHR website and have difficulties to understand the reasoning.
Did the ECtHR decided that it is not its competence to judge this case (i.e. because the EU is not yet a member to the convention)?
The judgment is in the Lithuanian language. It is difficult to say what did judge Sajó think exactly. The only argument that his single judge chamber produced is:
"The Court decides that Article 6 of the Convention is not applicable in respect of the contested procedure. Thus, the application is not compatible ratione materia with the provisions of the Convention under Article 35(3) of the Convention."
End of reasoning. No appeal is possible.
Thanks for the interesting post. This case would be useful for some research I am doing, but I cant find any reference to it at all on Hudoc - do you have a link to the judgment? Thanks!
HUDOC does not publish judgments of single judge chambers. They put there starting from 5 judges chambers. I will look whether I can upload it here or somewhere else, and post the link here.
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