Procedural initiation

States appear as complainants before the IACtHR if they file a complaint against another contracting state. First of all, they have to file a complaint before the IACHR, but they can independently – i.e. without the involvement of the IACHR – make a complaint pending. In addition, only the IACHR can initiate a judicial protective procedure by transferring a procedure (that it has been concluded) to the Court. For one thing, contracting states are in turn authorised to file a complaint before the IACHR; but on the other hand, individuals are also entitled to do so. Therefore individual complaints can be brought before the IACtHR exclusively via the IACHR.

Nevertheless, the ACHR itself does not provide for any compulsory jurisdiction of the IACtHR. On the contrary, it requires an additional declaration of acceptance on the part of the contracting states through which the jurisdiction is to be recognised (Art. 62 ACHR). In relation to state complaints, this also applies to the jurisdiction of the IACHR, whose quasi jurisdiction also has to be recognised separately (Art. 45 I ACHR). Therefore a governmental complainant can only bring a matter before the Court if the appellant state has submitted declarations of acceptance to both entities. Lacking submission under the IACHR leads to the

fact that an obligatory preliminary procedure cannot take place, and therefore the complaint cannot even reach the Court. Lacking submission under the jurisdiction of the IACtHR results in the fact that the protective procedure ends before the IACHR, and can no longer be authoritatively adjudicated.

However, individual complaints before the IACHR are not possible without additional recognition of competence. This is noteworthy, since individual complaints also constitute the vast majority of pending procedures in the Inter-American system721

, and therefore the purpose pursued with a declaration of acceptance – curbing the quasi-judiciary control through the IACHR – comes up empty-handed if it is restricted merely to the extremely rare state complaints (such as through Art. 45 I ACHR).

The European system took a very similar approach as the basis for its original version, which (as the oldest regional human rights protection system) was to a certain extent the inspiration for the American system. The ECtHR (under the current version of the ECHR) could also only be applied to by states and the European Commission of Human Rights (Articles 44, 48 ECHR, current version).

Complaints were able to be brought before the ECHR from state parties as well as from individual citizens. Just like in the Inter-American system, individuals received access to judicial protective procedures only through the intervention of the Commission. But unlike the Inter-American system, the European counterpart raised a double jurisdictional barrier — not for state complaints, but for individual complaints. The jurisdiction of the ECHR722

as well as the jurisdiction of the ECtHR723

were only established through submission of an appropriate declaration of acceptance. That meant the states could accede to the ECHR, but the validity of the control system – at least for the virtually solely relevant realm of individual complaints – was for the most part precluded.724

721

As a matter of fact, there has not even been a single State complaint until this very day. 722

Art. 25 I ECHR (curret version). 723

Art. 46 ECHR (current version). 724

In the end, all member states recognised the decisional competences of the ECHR and the ECtHR, and since 1993 it has been a ‘political compulsory exercise’ – for states which want to join the Council of Europe – to join the ECHR, and to comprehensively recognise the control system: “Such accession presupposes that the applicant country has brought its institutions and legal system into line with the basic principles of democracy, the rule of law and respect for human rights. The people's representatives must have been chosen by means of free and fair elections based on universal suffrage. Guaranteed freedom of expression and notably of the media, protection of national minorities and observance of the principles of international law must remain, in our view, decisive criteria for assessing any application for membership. An undertaking to sign the European Convention on Human Rights and accept the Convention's supervisory machinery in its entirety within a short period is also fundamental. We are resolved to ensure full compliance with the commitments accepted by all member States within the Council of Europe”, comp. Vienna Declaration of 9 October 1993, available on www.coe.int.

The access of the individual to the judicial control mechanism was only granted with entry into force of the 9th Supplementary Protocol to the ECHR for states which had ratified the additional protocol. The individual only garnered unrestricted capacity to be a party to legal proceedings before the ECtHR with entry into force of the 11th Supplementary Protocol. Based on this background, if one considers the legal fundamentals of the AfrCtHPR, considerable differences to the two other regional systems are conspicuous in the procedural initiation stage. The most important difference lies in the provision of Art. 5, which enumerates those entitled to lodge complaints. As in any regional system, this includes the contracting states as well as the AfrCHPR. But a decisive aspect at this point is that the jurisdiction of the AfrCtHPR is also open to individual and popular complaints.725

Of course, this presupposes a separate jurisdictional commencement through presentation of a declaration of acceptance commensurate with Art. 34 VI, but this circumstance – unlike in the two corresponding regional packs – shall not prove to be a long-term obstacle, due to the following considerations:

First, the quasi-jurisdiction of the AfrCHPR for individual complaints (in the terminology of the Banjul Charter: “other communications”) is already established with the ratification of the Banjul Charter, and requires no further declaration of acceptance through the contracting states. And so individuals can initiate a complaint procedure before the AfrCHPR at any time; this entity can then transfer the procedure to the AfrCtHPR. This corresponds to the legal situation under the ACHR. But there is a fundamental difference to the ACHR as well as the ECHR (current version): No further declaration of acceptance on the part of member states is required for the transfer of the complaint through the AfrCHPR to the regional Court, since the restriction rule of Art. 34 VI only pertains to direct complaints through individuals and NGOs. For complaints from states and the AfrCHPR, the mere ratification of the protocol establishes the ratione personae competence of the AfrCtHPR. Ratifying parties to the protocol can thus no longer be protected against transferred individual communications. As a result, the AfrCHPR obtains a catalyst effect which allows the Court to adjudicate over individual complaints, without the appellee state having to render a declaration of acceptance concerning individual complaint procedures. This difference may have far-reaching repercussions, since it was a long way for the IACtHR and the ECtHR until the first individual complaint had cleared the various jurisdictional hurdles. Insofar as that is concerned, the African system, which lagged behind in the international comparison until the

725

establishment of the AfrCtHPR, was further developed with remarkable progress, and as a result has left the ACHR and the ECHR (in its original version) behind with regard to the procedural initiation.