The project started out with me being interested in why no reasons are given for the refusal to accept a referral request, however it has moved on to concentrate on the concept of ‘seriousness’ as used in the relevant provisions of the Convention and rules of court. The key question that I am concerned with is how we identify which questions are ‘serious enough’ for the Grand Chamber to be convened, bearing in mind that hearing a case before the Grand Chamber involves a substantial investment in time, resources and judicial energies.
Article 43 provides:
- Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.
- A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance.
- If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.
The project, which I am now writing up, studies referral requests and decisions from 2011-2014. This confirms that the acceptance rate for referral requests is very low (as demonstrated by the chart to the left) and that the nature of the alleged violation is not, per se, the relevant indicator of seriousness. Rather, seriousness is determined largely by reference to the potential implications of the decision ‘below’ for consistency, evolution and jurisprudential coherence related to the Convention.
I presented this as a ‘work in progress’ to the Oxford Human Rights Hub where I am a visiting fellow this year back in February, and the audio from the presentation is available here. There is a very limited amount of scholarship on Article 43 referrals, at least in English. I would be grateful for suggestions from any readers who are aware of relevant work as I move towards finalising this paper.