Definition and area of expertise
The European Court of Human Rights is an international court based in Strasbourg, which acts as the official court of justice of the Council of Europe. The latter represents an international organisation aiming to ensure the protection of human rights and of democracy throughout Europe. The Court is tasked with solving cases regarding the violation of the provisions outlined by the European Human Rights Convention, by a member of the Council.
Once an application containing the complaint is lodged, if such violation is indeed confirmed by the Court’s analysis of the case, the Court rules against the state responsible and sentences said state to pay reparation to the victim.
Requirements for safely lodging an application
If an act pertaining to a public authority of a state that has signed the Convention violates any of the Convention’s provisions, the party which finds its rights damaged can file a complaint regardless of citizenship. The complaint must be filed against a state, complaints against individuals being outside the Court’s competency.
However, in order for the application to be admissible, there are certain preliminary requirements concerning national law and procedure
First of all, the plaintiff must exhaust all remedies provided by the national law before filing the complaint before the European Court of Human Rights. This usually means initial judgement, appeal and, potentially, further appeal before a higher court. After using all these remedies, the application must be lodged in the first 6 months following the last decision rendered by a national judge.
Other requirements concern the format and content of the application. The application form that has to be filled out can be found on the Court’s website and must be sent to Strasbourg through the postal service.
The application must contain:
- a short summary of the facts
- a mention of the rights deemed violated,
- mentions of the national legal remedies used with attached copies of the decisions rendered,
- the signature of the plaintiff or of his legal representative.
The procedure takes place exclusively in written form. No charge is imposed on the plaintiff and legal assistance from a lawyer is not required prior to the application being admitted and communicated to the Government.
After receiving the application, the Court will first of all analyse the aforementioned requirements of admissibility and will proceed to reject the application if any of them is not met. If an application contains multiple complaints, the Court can partially admit the application if at least one of the complaints meets all the requirements. The decision the reject an application is final and can not be contested or appealed.
Once the application is declared admissible and no friendly settlement can be reached between the parties, the Court will begin analysing the facts of the case in order to determine whether or not there has been a violation of the provisions of the Convention.
A winning plaintiff is eligible to receive ‘just satisfaction’ which is a sum of money that also includes the expenses with the case. On the contrary, if the plaintiff proves to be the losing party, he will not incur any additional expanses.
Things to keep in mind when lodging an application
The European Court of Human Rights is not a higher court of appeal in relation to the national courts and thus can not overrule national decisions nor annul national laws.
It is the responsibility of the Committee of Ministers of the Council of Europe to execute the Court’s judgements. The Court itself cannot be held accountable for any fault in the execution of its judgements.
Due to the ever-increasing number of applications lodged, the average waiting period between the lodging and the initial examination is one year.
The chances of actually receiving reparation is relatively low. Statistics show that in 2016 82% of the applications lodged have been declared inadmissible and 52% of these have been rejected on the merits of the case.
Vlad-George Popescu – Legal Intern
R&R Partners Bucharest
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