Applying to the European Court of Human Rights

Introduction

Members of Parliament are often asked how constituents can take a case to the European Court of Human Rights in Strasbourg.

There is lots of information for applicants and lawyers on the Court’s website. This note summarises the main features of the process such as the need to exhaust all domestic remedies first, and emphasises recent changes such as the new requirement that the applicant has suffered ‘significant disadvantage’.

Submitting an application

Firstly, all applications must be validly submitted.

There are detailed rules on how to fill in the official application form, and a six-month deadline for sending it.

These rules have recently been tightened further, largely because of the large number of complaints made to the Court. For instance, the application and any supporting documents – including any additional information requested by the Court – must all be posted within six months of the final decision by the highest competent national authority.

If these rules are not met, the Court can refuse even to register the case.

Admissibility

The next stage is for the Court to decide if a case is ‘admissible’ (in other words, whether judges will go on look to at the merits of the case). Most cases are ruled inadmissible.

The main conditions that must be met are:

• The applicant (or a close relative) must have been the victim of an alleged violation of the European Convention on Human Rights and – a new condition – must have suffered ‘significant disadvantage’ as a result. A complaint against the general principles or provisions of Government policy or legislation would not be admissible, unless the personal rights of the applicant were affected.
• The alleged violation of the Convention must be attributable to the action or inaction of a State Party to the Convention or its public authorities (for instance a Government department, local authority or court). The Court does not deal with complaints against individuals or private or commercial bodies.
• The complaint must refer to an alleged violation of a specific right mentioned in the Convention or its Protocols. A vague reference to ‘human rights’ will not do.
• Before applying to the Court, the applicant must have exhausted all domestic remedies. This means that the applicant has done everything possible to resolve the case in their own country, which usually means taking a case to the appropriate national court, tribunal or authority, followed by an appeal where applicable, up to the highest level with the power to remedy the complaint (for example the UK Supreme Court).
• The complaint must not be ‘substantially the same’ as a matter that has already been examined by the Court.
• It must not be ‘manifestly ill-founded’. This rather vague condition is the basis of many inadmissibility decisions.

Court proceedings

There are several stages to the Court’s processes:

• The Court first decides whether an application has been validly submitted.
• It next examines all validly-submitted applications to see if they are ‘admissible’ – in other words, whether they comply with the basic conditions set out in Article 35 of the Convention.
• A panel of three, seven or 17 judges examines the merits of admissible applications.
• The Court will first encourage the parties to reach a settlement.
• If no settlement is reached, the Court will consider the case in writing or (in a minority of cases) with a hearing.
• It will then issue a judgment.
• If the Court finds a breach of Convention rights, it can (but does not have to) order the State concerned to pay compensation and costs to the applicant. It cannot overrule national laws or national court rulings. If no violation is found, the applicant does not have to pay the state’s costs.
• The State concerned is bound under international law to comply with final judgments of the Court, although it has some discretion about how to do so. The Council of Europe’s Committee of Ministers can take steps to enforce Court judgments.

Nearly all the proceedings are conducted in writing. Anything the applicant would like to communicate with the Court must be in writing, and the applicant is informed in writing of any decision taken by the Court.

Lawyers and legal aid

Although applicants do not need a lawyer for the initial stages, it could help them meet the complex admissibility requirements.

If the case proceeds, they will need a lawyer.

In some circumstances the Court can grant legal aid.

Not to be confused with…

Finally, it is important to note that the Strasbourg Court – which is part of the 47-country Council of Europe – is nothing to do with the EU.

The EU has its own court in Luxembourg, the Court of Justice of the EU, which rules on interpretation of EU law and treaties, and can hear some types of cases from individuals alleging a breach of those rules.