Bringing a case to Strasbourg

The process of bringing an application to Strasbourg is not an easy one to navigate. As a consequence, applications are often mishandled, even by legal practitioners. Sometimes procedural mistakes are made which will prevent the court from considering an application. However, even where this is not the case, a poorly presented application will not do justice to an applicant’s complaints and a failure to follow the correct procedures will result in increased delay.

The purpose of the following guide is therefore to clarify the court’s practices and procedures for dealing with applications, while also providing advice to practitioners on how to submit an effective application.

Step 1: To apply, or not to apply

Although the court’s controversial judgments capture the headlines, much of its time is spent processing applications which are inadmissible.

Of the 2,082 applications against the UK processed by the court in 2012, 2,047 were declared inadmissible. Of these 1,789 were declared so by a single judge, because it was evident from the application form that the admissibility criteria in articles 34 and 35 of the convention had not been met.

Therefore, anyone intending to bring an application to Strasbourg should first ensure that it meets the admissibility criteria. This means asking the following questions:

• Is the applicant a victim of the alleged violation?
• Can the alleged violation be attributed to the state?
• Is the complaint substantially the same as one previously submitted by the applicant to the court or any other international tribunal?
• Has the applicant exhausted domestic remedies?
• Have more than six months elapsed since the date of the last effective domestic decision?
• Has the applicant suffered a significant disadvantage?

Step 2: Bringing an application

Before submitting an application form, it is important to have regard to the six-month time limit. It is currently possible to stop this time limit running by writing to the court indicating an intention to submit an application. Applicants will then be given eight weeks to submit a properly completed application form. If the application form is submitted within eight weeks, the date of the first letter will be the date of introduction of the complaint. If the form is submitted outside this time limit, the date of its submission will be the date of introduction.

However, once the revised rule 47 of the rules of court is implemented (see below), only the submission of an application form will stop time running.

Step 3: Completing the application form

a) Rule 47 of the rules of court

Rule 47 sets out the requirements for a valid application form. It also requires the application to:

• Be coherent and legible;
• Clearly identify the respondent state – the name of the state should be used and not the name of a government official or public authority;
• Include copies of any relevant documents in a manageable form; and
• State whether the applicant has used another international method of settlement.

Rule 47 is currently being revised and once the revised rule is implemented the court will also require:

• An application form to have been signed; and
• A form of authority to have been submitted, where the applicant is represented.

It is anticipated that these changes will take effect from 1 January 2014.

Although the court retains some discretion to admit applications which have not been properly completed, it is likely to refuse to register an application which does not comply with rule 47. From April 2012 until 31 December 2012, 6.7% of all applications against the UK were not registered because they did not comply with rule 47.

An application rejected for non-compliance with rule 47 may be resubmitted. However, the earlier application will not have stopped time running for the purpose of the six-month time limit, and if this has since elapsed, the resubmitted application will be inadmissible on account of having been lodged out of time. It is therefore not advisable to wait until the end of this six-month period to submit an application.

(b) Best practice

In addition to the requirements of rule 47, there are a number of things that greatly assist the court in its consideration of an application.

• Correct names and addresses: Applications should include the correct name and address of both the applicant and representative. The court should be notified immediately of any changes.
• Form of authority: The representative named on the form will be the representative named in any judgment. All representatives wishing to be so named should be listed on the form and a fresh form of authority submitted for any new representative. The court will not rectify a published judgment to include the names of a representative of whom it has not previously been notified.
• Complaints: Adding complaints after an application has been communicated to the member state requires the permission of the court. All the complaints should therefore be included in the original application. If an applicant has submitted an application form without legal assistance, any solicitors subsequently instructed should check the form carefully and notify the court immediately if they wish to make any changes.
• Although complaints should be particularised and clearly explained, the form will be considered by domestically trained lawyers able to identify an arguable complaint from a succinct statement of the facts and alleged violations. It is therefore not necessary to submit extensively reasoned arguments at the application stage. If the application is communicated to the government, there will be an opportunity to submit full observations on the admissibility and merits.
• Be succinct: The court receives over 65,000 applications each year, so a succinct statement of the relevant facts and complaints is always favourably received.

Step 4: Post-application

Once an application form has been submitted in the proper form, it will be registered by the court and assessed by a lawyer. If the lawyer believes that the application is clearly inadmissible, the case will usually be sent promptly to a single judge, who can declare it inadmissible.

A chamber of seven judges may also declare an application inadmissible at this stage in an inadmissibility de plano decision. As decisions of the chamber are published on the court’s website, this procedure is only used if it is desirable that the decision be made public.

If the lawyer considers that the application discloses an arguable violation of the convention, in due course a report will be prepared communicating some or all of the applicant’s complaints to the respondent state’s government and requesting written observations from the parties.

Unless the application is given priority status, it is unlikely to be communicated immediately. Priority status is normally granted to expulsion cases and applications which contain complaints under articles 2, 3 and 5 of the convention. The court may also prioritise a case where the applicant’s personal circumstances necessitate it, for example on account of their age or ill health.

If the application appears to disclose a violation of the convention in accordance with the court’s well-established case law (WECL), it may be dealt with under the accelerated ‘WECL procedure’. In such cases a friendly settlement is usually proposed by the court, only the government is entitled to submit observations and any decision is taken by a committee of three judges.

The initial assessment of the application is not determinative. Thus, a single judge may decide that an application is not inadmissible and request that it be communicated. Likewise, a case originally earmarked for communication might ultimately be declared inadmissible by a single judge or a chamber.

Applying to the European Court of Human Rights can be a slow and frustrating process. But writing to the court to speed up the process is not recommended. The court has to follow its own internal prioritisation system and unnecessary correspondence only creates additional delay.

Step 5: Post-communication

Upon communication, the government will be invited to submit written observations on the admissibility and merits of the application within 16 weeks. Once the government’s observations have been received, they will be sent to the applicant for comment, together with any proposals for friendly settlement and any claim for just satisfaction. The applicant will usually have six weeks to respond. The government will then be given an opportunity to make final submissions to the court.

Observations should be submitted within the deadline indicated by the court. The court has discretion to grant an extension if it considers it necessary; however, it will not do so automatically and it will rarely do so more than once.

Observations should address the questions asked by the court. If the court has not asked a question about a particular complaint, it is because it did not consider it to be admissible and any further argument in relation to it will be ignored.

Any claim for just satisfaction and/or costs must be made by the applicant at this stage as the court has no discretion to admit a claim for just satisfaction or costs when out of time.

Finally, once an application has been communicated, any request for legal aid, anonymity or confidentiality should be made promptly by the applicant.

Step 6: Friendly settlement

The court will usually propose a friendly settlement in cases processed under the WECL procedure. However, it may also make a friendly settlement proposal at the time of communication in any case where it considers it appropriate.

Any such proposal should be considered carefully, as it reflects the court’s considered view of the merits and value of the complaint.

Moreover, if the applicant rejects the proposal, the government may issue a unilateral declaration in which they offer to pay an amount in full and final settlement of the claim. If the court thinks the figure in the unilateral declaration is reasonable, it may strike the case from its list. In a unilateral declaration the court usually permits the government to reduce the figure originally proposed by 10%.

Step 7: Post-decision

If a case cannot be settled, it will be considered by a chamber, which will either declare it inadmissible or declare it admissible and reach a decision on the merits.

The chamber’s decision is usually based on the parties’ written observations, although an oral hearing may be held where the issues in question are particularly complex and oral argument would assist in clarifying them.

Within three months of the chamber’s decision, the parties may request a referral to the grand chamber. However, a referral request will only be granted if there is a question affecting the interpretation of the convention or if there is a risk of inconsistency with a previous judgment of the court. Referrals to the grand chamber are therefore exceptional and should not be treated as an appeal against an unfavourable decision by a chamber.

Final note

The practices and procedures of the European Court of Human Rights are complex and this guide is only intended to provide a brief outline of some of the more important requirements.

Anyone considering bringing an application to Strasbourg should first consult the court’s website which contains extensive information about the application procedure and the admissibility criteria.

Pamela McCormick is a registry lawyer at the ECtHR, working predominantly on cases against the UK