Ciò che esce dalla porta (del ricorso individuale) non rientra dalla finestra (del ricorso interstatale): la decisione Slovenia c. Croazia della Corte europea dei diritti dell’uomo

On 18th November 2020, the Grand Chamber of the European Court of Human Rights (ECHR) has released, by a majority, a decision declining its jurisdiction to examine the inter-State application submitted by Slovenia against Croatia. This contribution aims to address the crucial aspects of the decision, which is considered to be of great relevance insofar as the Court, for the first time in its case- law, carefully examined the relationship between Articles 33 and 34 ECHR, concluding that there exists a systematic correlation between these two norms, which can be deemed to be as two different sides of the same ‘coin’. Attention has been particularly paid to the three distinct, yet closely interconnected, elements. First, Article 33 ECHR cannot be ‘triggered’ in order to protect fundamental rights of a legal entity – i.e. a governmental organization, as the Ljubljanska Banka D.D., whose conventional rights have been allegedly breached, has been regarded to be in the case at hand – which would be precluded from lodging an individual application pursuant to Article 34 ECHR, as it does not included in any of the categories of subjects listed therein. Consequently, a State cannot resort to an inter-State complaint to ‘circumvent’ the admissibility requirements set forth in Article 34 ECHR. In this regard, as repeatedly acknowledged in its previous case-law, the Court seized the opportunity to reaffirm that an inter-State application can be lodged mainly for two reasons: a) to protect the ‘European public order’; b) to act on behalf of a natural person, a non-governmental organization, or a group of individuals whose rights were allegedly breached by another State party. Further light will be also shed on the Court’s reasoning behind its conclusion, emphasizing that the Grand Chamber, in ascertaining whether it had the competence to examine the question of jurisdiction (especially ratione materiae and ratione personae) already at the admissibility stage, concluded that it could proceed to do so, recalling its previous decision issued in Georgia v. Russia (II), but also relying upon the principle of procedural economy. The second part of the contribution delves into the vexata quaestio of whether ECHR’s rights should be also extended to ‘governmental organizations’, including both State institutions strictu sensu or, as in the case at stake, private companies owned or controlled, in whole or in part, by the government. It is interesting to note that while the ECtHR has historically been reluctant to grant human rights to public entities , unless a complete independence from the public authority is proven, on one side, the European Court of Justice (ECJ) has adopted a more flexible approach in allowing public entities to claim rights under the EU Charter of Fundamental Rights, thus creating a contradiction within the European legal space that may need to be further clarified in the future.