6 Things to Know about the European Court of Human Rights

05
Jan 2016

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European Court of Human Rights Serbia, Human rights attorney Serbia, human rights lawyer Novi Sad

The European Court of human rights (hereinafter: the Court) is an international institution based in Strasbourg. It protects citizens of member states of the European Council and signatories of The Convention on Human Rights (hereinafter: the Convention), alleging their rights (which are protected by the Convention are violated. The Court is organized so that every member state of the Council of Europe provides one judge, so the number of the judges is the same as the number of the member states.

Lodging an Application to the European Court of Human Rights

An application can be lodged against one or more signatories of the Convention which the applicant considers are responsible for the activities that violated their rights protected by the Convention. The application can be submitted against decisions made by courts or administrative bodies. It is not possible to lodge an application against individuals or private companies. For example, an employee cannot initiate a proceeding against their employer before the Court but can submit an application against the member state, in the case that national courts violated their human rights during the procedures against the company.

The applicant can be an individual, a group of individuals, NGO, a company, or an association.

In order to submit an application, you have to be personally and directly affected by the violation of rights. It is not allowed to complain in general, because you, for example, consider some laws or procedures to be unfair. Also, it is not possible to apply to the Court on behalf of others (except when you have power of attorney).

For lodging an application you do not need to be a national of the member states of the Council of Europe. It is enough that the alleged violation of rights happened by one of the member States. Usually, that means it happened in the territory of one of the states.

Which rights are guaranteed under the Convention and its protocols?

The Convention guarantees, individually:

  •  Article 2 Right to life
  • Article 3 Freedom from torture and inhuman or degrading treatment
  • Article 4 Freedom from slavery and forced labor
  • Article 5 Right to liberty and security
  • Article 6 Right to a fair trial
  • Article 7 No punishment without law
  • Article 8 Respect for your private and family life, home and correspondence
  • Article 9 Freedom of thought, belief and religion
  • Article 10 Freedom of expression
  • Article 11 Freedom of assembly and association
  • Article 12 Right to marry and start a family
  • Article 14 Protection from discrimination in respect of these rights and freedoms
  • Protocol 1, Article 1 Right to peaceful enjoyment of your property
  • Protocol 1, Article 2 Right to education
  • Protocol 1, Article 3 Right to participate in free elections
  • Protocol 13, Article 1 Abolition of the death penalty.

Conditions to be fulfilled

Deadline

According to the deadline, it is advisable to be careful. Namely, the current deadline to turn to the Court is within a period of  6 months from the date on which the final decision was taken. Still, the biggest novelty in the procedure before the Court is to appear with this regard. The Additional Protocol 15 shortened the deadline to 4 months. This Protocol has still not come into force as it is not signed by all member states, which is the prescribed condition. If you are willing to lodge an application, keep in mind to check the deadline because if your application is late, the Court will not take it into consideration.

The deadline starts to run when the highest court or the highest state institution decide in the concrete legal matter. If the decision is not publicly announced, the deadline starts to run from the date when the decision is delivered to the party.

Anonymity

The application shall not be anonymous. It has to be signed by the applicant or their representative. If the Court is not able to declare who lodged an application, it will declare it as inadmissible.

Identity

The application cannot be identical to another application. There are two levels to this. Firstly, the application cannot be identical with an application that the Court already decided on (identical means it is legally and factually same as another application). Secondly, it cannot be identical with an application lodged to another international institution (for example to the UN Human Rights Committee).

Exhaustion of domestic remedies

One of the conditions to lodge an application is to exhaust all domestic remedies. In the case Vinčić and others v. Serbia, the Court stressed that it is necessary to apply to the Constitutional court in Serbia before lodging an application and after it made a decision in the case of the applicant, these conditions are fulfilled. The applicant has 30 days to apply to the Constitutional court after the final judgment is given in their case. Be aware that this 30 days-long deadline does not run after a decision on extraordinary remedies. If you are willing to lodge an extraordinary remedy, this procedure must run parallel to the procedure of deciding by the Constitutional court.

Actually, it is possible to miss this remedy and to explain by lodging an application why you did so. This is not advisable because the practice of the court shows that this kind of application is dismissed on the first level. If you fail to submit a constitutional complaint,  you could explain the reasons in the application, which requires great legal expertise and we consider it necessary to consult a human rights attorney in Serbia.

Abuse

The Court will find an application inadmissible: if it declares it is not in order with the regulations of the Convention, if it is obviously ungrounded or if it represents an abuse of the right to lodge an application. The Court declares abuse in a common way which is not different from the way it is interpreted in national laws of member states. For instance, it happens in cases where an application is submitted for other purposes than it is intended for. The question of abuse is raised also when the application has offensive or inappropriate language or when the party breaks the rule of discretion in the procedure of friendly alignment.

Insignificant disadvantage

If the Court finds that the applicant has not suffered a significant disadvantage, it will find the application inadmissible. In the practice of the Court, it occurred when the applicant claimed the amount of 90 euros. Since the Court is overcrowded with a lot of cases, it is not in the position to spend its resources on questions which are of small importance or do not have a huge consequence to the personal life of the applicant.

Content of the application

The application is filled out on the official form which can be found on the website of the Court. Also, it is possible to write an application in a free form. In that case, the Court will ask you afterward to fill in the form.

It is important to describe the facts on which you base your application and to underline the rights guaranteed by the Convention under these facts.

Moreover, you should present the timeline of the processes before the domestic courts (stating all the decisions, their dates and sending the copies of these decisions). List the remedies you lodged. In the end, there should be your signature or the signature of your legal representative.

What is paramount to know about the procedure before the European Court?

There are no payments prescribed for the procedure. The only costs you may have are the costs of writing the application if it is done by a lawyer and the costs of correspondence with the Court. The entire procedure is done in writing, so you will not have additional costs of traveling to Strasbourg. There is a possibility for the Court to approve legal assistance to you, which would mean you will have no attorney’s fees. It is highly important to be aware that this kind of help is approved afterward, so it will not be at your disposal prior to the procedure.

The application can be written in the official languages of the Court (English or French) or in one of the official languages of the member states of the Convention, which means that you are allowed to write it in the Serbian language as well. The application may be sent to the following address:

The Registrar
European Court of Human Rights
Council of Europe
F-67075 STRASBOURG CEDEX

Primarily, the Court will examine if the application is admissible. If the Court finds that the required admissibility criteria are met, it will decide about merits (the content of the litigation itself). Before deciding on merits, the court will ask the parties to a friendly settlement. The State will be represented by a state agent – a state representative that all states have in these cases. The procedure is a one-stage by rule and only some extraordinary situations can lead to a judgment being challenged.

What are your benefits in the result of a positive decision?

If the Court finds your rights have been violated, you can earn a “just satisfaction”, which represents a certain amount of money.

Apart from that, the court can determine general or individual measures. General measures are predicted in order to fulfill the obligations prescribed in the judgment by the state member. These can be changes in the legislature or in the practice of a member state. Individual measures mean reopening a procedure at the national level in the event that the procedure was illegal, destroying information obtained by violating the right to privacy,  etc.

Anyway, be aware that the court will not communicate with the member state which is responsible for the violation and it will not give you information about the regulations that are in force in the country responsible for the violation.

The Committee of Ministers of the Council of Europe is responsible for the execution of judgments. Therefore, the Court has no jurisdiction over this part of the procedure.

It is possible to challenge the judgment of the Court, should new facts be discovered that could be crucial for the outcome of the case and were unknown to the party at the moment of giving the judgment.

The aim of writing this text is to present the most important information about the procedure before the Court to you. We have been guided by the frequently asked questions by our clients. Moreover, it serves to represent a general overlook about the functioning of this system and help you make a decision if you are interested to lodge an application. Keep in mind the complex structure of this procedure and consequently, it is advisable to contact a person which is familiar with the practice of the European Court in Strasbourg.

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