Effective Application to European Court of Human Rights

02.06.2017

EFFECTIVE APPLICATION TO THE EUROPEAN COURT OF HUMAN RIGHTS

1.             Convention system

The Convention on the Protection of Human Rights and Fundamental Freedoms (the “Convention”) is one of the key instruments of the Council of Europe. One of the distinctive Convention features is the existence of a real mechanism of protection of the declared rights through the European Court of Human Rights (the “European Court” or the “Court”), which examines individual applications on the alleged breaches of the Convention. The Court’s seat is in Strasbourg (France).

In 1998 Russia joined the Convention. Having signed and ratified the Convention, Russia provided to individuals and legal entities with the possibility to apply to the European Court to protect their rights and freedoms, guaranteed by the Convention (including the right to life, personal liberty and security, right to a fair trial, protection of property, as well as other inherent rights).

An effective application to the European Court is subject to compliance with certain formal requirements. For instance, one of the mandatory conditions preceding application to the European Court, as a rule, shall be the exhaustion of domestic remedies. As far as civil and commercial disputes in Russia are concerned, this would mean the necessity to pursue all appeal/ cassation appeal stages up to the Supreme Court of Russia.

At the same time, the European Court is not a Court of a “fourth instance” and it does not reexamine the domestic courts’ judgments in substance, even those of highest instances. The Court’s role is thus to ensure the respondent State’s compliance with the rights and guarantees provided under the Convention. For instance, a European Court’s judgment, in which the Court finds a violation of the applicant’s right to a fair trial, may serve as a basis for quashing of the final domestic decision on the case and remitting the case for a new examination by domestic courts.

2.              Convention arguments

The possibility to apply to the European Court ought to be considered already at the early stages of the court proceedings. This will enable the applicant to timely raise in domestic courts the necessary arguments in the light of the Convention provisions and guarantees (so-called “Convention arguments”), in order to comply with one of the most important admissibility criteria – the rule of exhaustion of domestic remedies, which must precede application to the Court.

For the purposes of effective application to the European Court, it is recommended to formulate the Convention arguments already at the stages of appeal/ cassation appeals of domestic court decisions. It is most practical to provide direct references to the relevant Convention articles, the guarantees of which, in the applicant’s opinion, are breached by the State and, if possible, to the European Court’s case law. These arguments should enable the domestic courts to examine the applicant’s case more thoroughly, in view of the legal concepts, formulated by the Court in its judgments, and express their position in relation to the alleged breaches of the Convention.

It cannot be excluded that those Convention arguments, in particular, supported by references to the European Court’s case law, will enable the national courts to look at the applicant’s case from a different angle and issue a more reasoned decision already at the appeal/ cassation appeal stages of the proceedings in the applicant’s favor, having excluded his subsequent application to the European Court.

3.              European Court’s judgments

In addition to traditional legal databases, used by the Russian lawyers (such as Garant or Consultant Plus), all European Court’s judgments are publicly accessible in the Council of Europe’s official languages (English and French) in HUDOC, the official database of the Court. The most important Court’s case-law is translated and made accessible also in other languages of the Convention member states, including Russian. The search mechanism of HUDOC is user-friendly and enables to find easily from a significant number of Court judgments the necessary precedents, on the basis of selected search criteria, as well as to filter out non-relevant cases.

Besides Court judgments, the publicly available database HUDOC contains press releases in relation to most important cases, summaries of Court judgments, and information concerning cases, which were communicated to the Governments of the Convention’s member States, but in relation to which the Court has not issued its judgment(s) yet.

As a general rule, all court decisions and case materials, submitted to the European Court, are publicly accessible. This means that any interested person may access the Court’s judgments (posted in HUDOC), as well as the case materials, having made a respective request to the Court. In exceptional cases the European Court may take a decision to grant confidentiality to the case materials and anonymity of the applicant based on his/her/its formal written request. However, it will be necessary to substantiate such a request to the Court to enable it to grant confidentiality/ anonymity.

4.              Preparation of application materials for lodging with the Court

When preparing the application form, it is necessary to read carefully the instructions concerning the filling out of the application form. Detailed information on the submission and examination of the applications is contained on the official web-site of the European Court (www.echr.coe.int) in 47 languages of the Convention’s member States, including Russian.

Considering that over 95% of applications submitted to the European Court are filtered out already at the preliminary state of their examination for non-compliance with the admissibility criteria  by judges sitting in a single judge formation (“single judges”) with the assistance of the Registry’s  lawyers, it is important to read beforehand the Practical Guide on Admissibility Criteria (which is accessible on the Court’s web-site in Russian), to make sure that the application which is to be forwarded to Strasbourg corresponds to such admissibility criteria.

During drafting of the application to the European Court, in which the Russian Federation is a respondent State, it should be considered that their preliminary examination (screening of the case) is carried out by Russian lawyers, who succeeded in a competitive selection by the Council of Europe and who have an extensive knowledge, competence and experience in Russian, international and human rights law. In should be also considered that each of them handles up to a dozen of applications daily (approximately 7,000 in 2016), a so-called “filtering stage”, after which the majority of applications is dismissed by one of the Court’s single judges, based on the Registry lawyers’ legal analysis.

Accordingly, the preliminary examination of one standard application (including enclosures thereto) takes a relatively small amount of time, during which the applicant should present the essence of his/her/its case and the alleged breach(es) of the Convention.

To increase the chances of the application to a maximum possible extent during the above-mentioned preliminary stage of examination of the application, it is important to fill in the application form correctly, to draft and structure the application efficiently and concisely, to present the circumstances of the case and the alleged breach(es) of the Convention, and, where possible, support the application with applicable references to the European Court’s case law.

In addition, it is required to select correctly the enclosures in support of the application, having enclosed copies of claims, appeals and cassation appeals, domestic courts’ decisions and other documents, substantiating the applicant’s position, to persuade the Court of the necessity to transfer the case to the Court’s Chamber, consisting of seven judges, for the communication of the application to the Government of the respondent State and for its further examination.

It is important to consider also other factors, which may increase the chances of success during the preliminary stage of the application’s examination by the European Court. For instance, if the case is high-profile, disputable, widely discussible in mass media and other forums, it is necessary to inform the European Court, indicating this fact in the summary of facts of the application and, if possible, having printed out and enclosed most relevant articles and additional materials on the case to the application.

At the same time, it is not recommended to overload the case materials forwarded to the Court, having limited them to the most necessary and relevant case materials (in particular, it is not recommended to send to the European Court any discs, USBs and video content, without any important reasons and/or without explaining the reasons for enclosing them to the Court; otherwise, the Court will, most probably, not consider them).

5.              Conclusion

The understanding of the Convention system, its basic principles and the Court’s concepts is paramount to carrying out the effective preliminary assessment of the prospects of the application to the European Court, its successful preparation and submission to the Court for further examination.

The knowledge of the Convention and the basic principles of the European Court evidence of the high legal culture.

Thus, the practicing lawyers who seek to protect the fundamental rights and interests of their clients, should find time for studying, considering and applying the Court’s precedents in their argumentation, to ensure effective and successful application to the European Court and consideration of the cases.

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If you have any questions in connection with this document, please contact Natalia Yakimova on +7 (495) 540-7555 or by e-mail: yakimova@trubor.ru.

 

 


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