“Verticalised” cases before the European Court of Human Rights unravelled: An analysis of their characteristics and the Court’s approach to them
| Date | 01 December 2020 |
| Published date | 01 December 2020 |
| Author | Claire Loven |
| DOI | 10.1177/0924051920965753 |
| Subject Matter | Articles |
Article
‘‘Verticalised’’ cases before
the European Court of
Human Rights unravelled:
An analysis of their
characteristics and the
Court’s approach to them
Claire Loven
Utrecht University, Utrecht, the Netherlands
Abstract
Based on Article 34 European Convention on Human Rights, individual applications must be
directed against one of the Convention States. Originally ‘horizontal’ cases therefore must be
‘verticalised’ in order to be admissible. This means that a private actor who had first brought a
procedure against another private actor before the domestic courts, must complain about State
(in)action in his application to the European Court of Human Rights. Recently, some scholars and
judges have raised procedural issues that may arise in these cases, but generally, these ‘verticalised’
cases have remained underexplored. To unravel verticalised cases before the ECtHR and to better
understand procedural issues that may arise from them, this article provides a deeper under-
standing of the origins of verticalised cases and the Court’s approach to them. It is explained that
verticalised cases before the ECtHR can be very different in nature. These differences are rooted in
the different types of horizontal conflicts that may arise on the domestic level, the different
relations between private actors they may concern, and the different Convention rights that may
be at stake. The wide variety of verticalized cases is also reflected in the Court’s approach to them,
as is the second main topic that the present article explores.
Keywords
European Convention on Human Rights, European Court of Human Rights, Procedure,
Verticalised cases, Relations between private actors, Horizontal positive obligations
Corresponding author:
Claire Loven, Utrecht University, Newtonlaan 201, 3584 BH Utrecht, the Netherlands.
E-mail: c.m.s.loven@uu.nl
Netherlands Quarterly of Human Rights
2020, Vol. 38(4) 246–263
ªThe Author(s) 2020
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DOI: 10.1177/0924051920965753
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1. INTRODUCTION
The system established by the European Convention on Human Rights (ECHR or Convention) was
designed in the years after the Second World War, which had provided horrific examples of how
States can misuse their sovereign power and deeply violate individuals’ autonomy, dignity and
freedom. Against this background, it is easy to understand that the Convention system was intro-
duced to protect individuals against fundamental rights violations by the State. In order to do so,
the Convention imposes legal obligations on States. Illustrative in this regard is Article 1 of the
Convention, which prescribes that ‘[t]he High Contracting Parties shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section 1 of this Convention’. The Convention
system, moreover, provides a collective enforcement mechanism in which individuals have a right
of individual petition. In other words, individuals can bring an application before the European
Court of Human Rights (ECtHR or Court) in which they complain about a violation of a Conven-
tion right by one of the Convention States.
1
The primary aim of the Convention is to protect individuals against fundamental rights viola-
tions by the State, but this does not mean that infringements of the values, rights and liberties
enshrined in the Convention by private actors (i.e. individuals or companies) are completely
ignored in the Convention system. To the contrary, over the years, the Court has increasingly
offered substantive protection of Convention rights in relations between private actors. The Court
does so by way of imposing horizontal posi tive obligations on the Convention States, which
require them to take action to secure the rights and liberties guaranteed in the Convention in
relations between private actors. These obligations originate from the Convention States’ respon-
sibility for their own acts and omissions in relation to the acts of private actors.
2
It is a logical consequence of the Convention system that such protection of Convention rights
in relations between private actors is offered by means of horizontal positive obligations. Article
34 ECHR provides that complaints have to be directed against one of the Convention States.
Hence, complaints directed against priv ate actors are incompatible ratione personae with the
provisions of the Convention. The practical response to this is to ‘verticalise’ cases that originate
from a horizontal conflict at the domestic level. This is, for example, the case when a private actor
who had first brought a procedure against another private actor before the domestic courts,
complains about State (in)action in relation to this case before the ECtHR, thus rendering it from
a ‘horizontal’ case (between private actors) into a ‘vertical’ one (between a private actor and the
State).
Although it has long been recognised that this ‘verticalisation’ exists,
3
only recently have some
scholars and judges started to raise some procedural issues that may arise in verticalised cases
1. See Article 34 ECHR. Article 34 ECHR states that the Court may receive applications from any person, non-
governmental organisation or group of indivi duals. Due to the Court’s broad interpretation of ‘non-governmental
organisation’ legal entities are allowed to submit applications to the Court. The Court has, for example, accepted
complaints of churches (e.g. ‘‘Orthodox Ohrid Archdiocese (Greek-Orthodox Ohrid Archdiocese of the Pec
´Patri-
archy)’’ v the former Yugoslav Republic of Macedonia App No 3532/07 (ECtHR, 16 November 2017)), television
companies (e.g. Centro Europa 7 S.R.L. and Di Stefano v Italy App No 38433/09 (ECtHR (GC), 7 June 2012)) and
private corporations (e.g. S.A. Bio D’Ardennes v Belgium App No 44457/11 (ECtHR, 12 November 2019)).
2. See for example the Court’s reasoning in O’Keeffe v Ireland App No 35810/09 (ECtHR, 28 January 2014) para 168.
3. See e.g. the work of Stijn Smet (Stijn Smet, Resolving conflicts between human rights: a legal theoretical analysis in the
context of the ECHR (Ghent University 2014 (diss.)); Stijn Smet, Resolving conflicts between human rights: the judge’s
dilemma (Routledge 2017)). Furthermore, in the 2000s ‘verticalisation’ was criticised because of its contribution to an
Loven 247
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