Applications to the European Court of Human Rights
It is now necessary to make the application on and in the form provided by the Court (available from its website). It is also necessary to ensure that all the questions on the form are answered correctly and all of the documentation required is sent with the form before the expiry of the time limit for applications.
The following information is required by the Court:
(a) the applicant’s name, date of birth, nationality, sex, occupation, and address;
(b) the name, address, and occupation of anyone acting as the representative;
(c) the respondent country;
(d) a clear and concise statement of the facts, including, of course, the exact dates;
(e) a succinct statement of each and every alleged violation of the Convention and the relevant arguments (this should include the relevant domestic law and any relevant Convention case law);
(f) a succinct statement of compliance with the admissibility criteria, including the six months (soon to be four-months) rule and the details of all remedies (including any appeal) which have been pursued within the country concerned and, where appropriate, an explanation of why any available remedies have not been pursued;
(g) the object of the application (for example, the repeal or amendment of certain legislation, or the reversal of a decision and compensation); and
(h) copies of the judgments, decisions, and any other documents relating to the application.
Only a fully completed application along with all the relevant documents will have the effect of instigating a case. It will not be possible to amend or supplement the application after it has been submitted.
Urgent cases, interim measures and the Court’s priorities
The Court’s full procedures take some time (five years or more in many cases), but it will give priority to very urgent cases (for example, where a person’s life or well-being is immediately threatened). The Court can also be asked to implement its interim measures procedure. In rule 39 the Chamber or its President may indicate to the parties interim measures which it considers should be adopted.
The Court’s priority policy
The Court approaches its workload on the basis of the following priorities:
- urgent applications—threats to life or health;
- applications raising questions about the effectiveness of the Convention system: structural or endemic situations or raising questions of general interest (including ones with possible major implications for domestic legal systems or the European system);
- applications which raise as their main complaint Articles 2, 3, 4, or 5(1) and which have given rise to direct threats to the physical integrity and dignity of human beings;
- potentially well-founded applications based on other articles;
- applications raising issues already dealt with by pilot or leading judgments;
- applications identified as giving rise to a problem of admissibility; and
- applications which are manifestly inadmissible.
The Court’s jurisdiction is limited and applications can be considered only if they meet the admissibility criteria set out in Article 35 of the Convention, which are rigorously applied and which are set out in turn below. It is therefore critically important to ensure that an application complies with the admissibility requirements, and contains all the facts and arguments of law. To have a real chance of success, it is necessary for the application to set out the facts, the relevant domestic law, and detailed submissions on the law of the Convention. One of the best ways of setting out the application is to model it on a judgment of the Court.
Article 34 provides that an application under the Convention can be brought by ‘any person, non-governmental organization or group of individuals claiming to be the victim of a violation’. Neither individuals nor legal persons have to be citizens of the state concerned, nor of any Member State. They do not have to be resident or physically present in the territory. Applications may not be brought by governmental organizations or other ‘emanations of the state’. Although applications may be brought by groups of individuals and non-governmental organizations (NGOs), the organization or group must itself be a victim of a violation.
Who is a ‘victim’?
An applicant must be one of three types of victim: actual, potential, and indirect.
An actual victim is someone who is personally affected by the alleged violation. It is not necessary to show that any detriment has been suffered, although this will be relevant to the remedy.
A potential victim is one who is at risk of being directly affected by a law or administrative act.
An indirect victim is one who is immediately affected by a violation which directly affects another, such as a family member of someone imprisoned or killed. Family members of those killed or imprisoned can also successfully include in their cases applications about direct violations of their rights—for example Article 3 in disappearance cases. Another example of an indirect victim is a family member of someone deported or facing deportation.
Against whom can an application be brought?
Only states are parties to the Convention, and therefore only those states can commit violations. Where there are several state organs involved, it will not be necessary for this purpose to identify which level of the state organization is responsible. Applications cannot be brought against private persons or institutions. However, the application may be based on the state’s failure to fulfill positive obligations to ensure that human rights are respected by private persons within the state’s jurisdiction.
Extent of jurisdiction
Under Article 1, signatory states are required to ‘secure to everyone within their jurisdiction’ the rights and freedoms protected by the Convention. This means that states are liable for all events that take place in the territory for which they are responsible, not just those affecting their own nationals, and even if the effects of the events might be felt outside the Council of Europe area.
The application must concern a Convention issue
The Court’s jurisdiction extends only to applications relating to the rights and freedoms contained in the Convention and the Protocols that the Member State in question has ratified.
Exhaustion of domestic remedies
The ECtHR has consistently held that it ‘may only deal with the matter after all domestic remedies have been exhausted’.
This rule is applied strictly in practice. It applies only to the remedies that are available, sufficient, and which relate to the breaches alleged. In considering the nature of the remedy, the Court takes into account ‘the principles of flexibility and avoidance of undue formalism developed in its case-law on Article 35, in particular that it is sufficient if the applicant has raised the substance of his Convention application before the domestic authorities’. If a potential applicant to the Court is in doubt as to whether alternative remedies have been exhausted, it is usually sensible for the remedy to be pursued, though a ‘protective’ application to the ECtHR could be lodged simultaneously to avoid falling foul of the four-month time limit should the Court subsequently decide that the remedy was not effective and did not need to be pursued.
Four-month time limit
Once Protocol 15 is in force (later in 2015?), applications to the ECtHR must be made within four months of the final decision of the domestic proceedings (or the date that the victim was informed about the final decision) or, where there are no effective domestic remedies, of the violation of the Convention. This is a reduction from the previous six-month limit. There is very little flexibility for cases brought outside this time limit, though lack of knowledge of the violation may make a later application possible.
Other inadmissibility grounds
Under Article 35(2) and (3), the Court may declare an application inadmissible on further grounds, which are dealt with in turn below.
Anonymous applications are inadmissible; although the complainant may request on the application form that he or she wishes his or her identity to be kept confidential (apart from disclosure to the Member State itself).
(b) Petition is ‘substantially the same as’ previous applications
This restriction prevents successive applications by the same applicant in respect of the same facts, and is not interpreted by the Court to restrict applications in respect of different instances even if the issues are substantially the same. Similarly, the provision does not act to bar a second application where new facts have arisen since the first application.
(c) Examination by another international body
If the matter has already been submitted to, and dealt with by, some other inter- national procedure and contains no new information, it will be inadmissible.
(d) Incompatible with the provisions of the Convention
This ground covers applications which do not concern the rights and freedoms protected by the Convention, as well as situations in which the applicant is not within the jurisdiction of a Member State, or where the application is not directed against the state at all.
(e) Manifestly ill-founded
This is the most difficult criterion to assess. Ostensibly, this term is applied to applications that, on a preliminary examination, do not disclose any possible ground on which a violation could be established. Although the test is a prima facie one used to screen out clearly unmeritorious applications, it is applied very strictly. In effect, the Court’s assessment of whether an application is ‘ill-founded’ is a strict merits test. The Court’s assertion that a case is ‘manifestly ill-founded’ is not the same as saying that it is unarguable. Many cases that are plainly arguable are excluded on this ground.
(f) No significant disadvantage
The Court can declare the case inadmissible if ‘the applicant has not suffered a significant disadvantage’. If the Court makes this initial assessment it then needs to consider whether or not the application should be examined ‘to ensure respect for human rights’ before it can declare the case inadmissible. All these criteria have to be met before a case can be declared inadmissible:
- the applicant must not have suffered a significant disadvantage;
- respect for human rights does not require an examination of the application on the merits; and
- the issue in the case has already been considered by a domestic tribunal (this last condition will be removed once Protocol 15 comes into force).
The Court has helpfully set out the principles that can be derived from the cases decided under this provision in its ‘Admissibility Guide’.
(g) Abuse of the right of petition
The fact that an applicant does not come to the Court with ‘clean hands’ or for a proper motive will not itself be a reason to reject the application. An inadmissibility ruling on this ground may arise, rather, if the application contains obviously untrue evidence, or where the applicant is demonstrably vexatious.
Decision on admissibility
A decision on admissibility will take several months and usually takes much longer. The ECtHR will give its decision on admissibility in writing. Clearly inadmissible cases will go to the Single Judge within a few weeks, but where the issue is less clear the decision will be made by a Committee or the Chamber. This question may be decided without further contact with the applicant or without communicating the case to the government concerned, however, it may seek the Government’s observations, and even seek a hearing before deciding the issue of admissibility (although this is very rare). In the majority of cases the inadmissibility decision will be made only on the basis of the application and the material provided by the applicant. The Court is not required to seek any further submissions or alert the applicant that this approach is being taken, and is unlikely to do so.
For more details see, Chapter 5, The Blackstone’s Guide to the Human Rights Act, 7th edition, OUP, 2015