What is an application to the European Court of Human Rights?
An application to the European Court of Human Rights affords individuals the opportunity to have examined by an international court whether a state has infringed upon their fundamental rights under the European Convention on Human Rights. Thus, an application to the European Court of Human Rights constitutes an additional legal remedy after all remedies on the domestic level are exhausted.
Aim of an application to the European Court of Human Rights
The European Convention on Human Rights
The procedure before the European Court of Human Rights regards the question whether a state has violated the European Convention on Human Rights. 47 European states have signed the European Convention on Human Rights. The ECHR contains a catalogue of certain fundamental rights and freedoms. Among them are, for example, the right to life, the prohibition of slavery and forced labour, freedom of assembly or the right to a fair trial. States, which sign the ECHR thereby undertake to secure these rights to all persons under their jurisdiction. To ensure that states meet their obligations under the Convention, a special court was established: The European Court of Human Rights in Strasbourg.
Task of the European Court of Human Rights
Persons who think that one of their rights under the European Convention of Human Rights have been violated may lodge an application with the European Court of Human Rights (however, certain formal requirements have to be fulfilled for the application to be admissible; see below). It is directed against the state which is responsible for the violation.
The European Court of Human Rights examines, whether rights which are enshrined in the Convention have been infringed upon – and only that. The European Court of Human Rights does not carry out a full legal review of judgments rendered by domestic courts. It does not deal with the question, whether domestic courts have applied provisions of domestic law in a correct manner. The Court does not review the establishment of facts by domestic courts as to its acuracy either. Therefore it is pointless to submit an application to the European Court of Human Rights on the grounds that the domestic courts relied on a witness who was in fact lying or that the referred to a document which had been forged.
The European Court of Human Rights does not deal with that kind of issues. It only scrutinizes the case in regard to a possible violation of the European Convention of Human Rights. The reason for this restriction is the task of the Court: Pursuant to article 19 ECHR it is to ensure that state parties to the Convention meet their obligations under the ECHR. From that it follows that the Court only concerns itself with the observance of the Convention, not with the correct application of domestic law.
Consequently, an application to the European Court of Human Rights only has prospects to succeed if the applicant is able to identify a provision of the Convention (or one of the additional protocols) which has been violated.
Admissibility of an application to the European Court of Human Rights
As mentioned above, an application to the European Court of Human Rights is only admissble if certain requirements are met. These requirements are set out in article 34, 35 ECHR. The most important ones are:
An application can only be submitted by a person or groups of persons who are directly affected by an action of a state. It is not sufficient if the applicant believes that a measure or action by a state violates the European Convention on Human Rights. The applicant must be personally affected by that measure.
Exhaustion of domestic legal remedies
Before an application can be lodged with the European Court of Human Rights, the applicant has to exhaust all domestic legal remedies. That means that he or she has to bring the case before a domestic court and to go through all instances.
In addition to that, the requirement of exhausting all domestic legal remedies has another aspect: If an applicant intends to submit an application to the European Court of Human Rights has to raise the legal issue, on which her bases his application, already before domestic courts. Thus, it is not possible to advance as only argument before domestic courts that the states has infringed upon one’s freedom of expression and then to submit to the European Court of Human Rights that one’s right to property was violated.
This is due to the principle of subsidiarity: The European Court of Human Rights is to interfere if states do not meet their obligations stemming from the ECHR. The Court acts if the state fails. Before the European Court of Human Rights becomes involved, states should be given the opportunity to correct any mistake on their own. To give the state sufficient opportunity to do so, the applicant has to avail himself of all domestic remedies and raise the issue he is aggrieved with.
An application to the European Court of Human Rights has to be submitted within 6 months (Protocol 15 to the ECHR sets out that this time limit be shortened to four months; it will enter into force as soon as all signatory states to the ECHR will have signed it). The time limit starts running when the applicant receives the decision on the last effective domestic remedy.
The procedure before the European Court of Human Rights
A procedure before the European Court of Human Rights is initiated by lodging an application. The Court provides an application form which has to be used. Copies of all relevant documents have to be appended to the application form. They include in particular judgements given by domestic courts in the case.
When the Court receives the application form, the registry checks whether the applicant has filled it in completely and signed it. Then the Court decides whether the case will be handled by a single judge, a committee of three judges or a chamber of seven judges. An application is assigned to a single judge when the Court deems that it can be rejected without further examination. A single judge cannot hold that there has been a violation of the Convention. The only decision a single judge can make is to reject the case.
If the European Court of Human Rights is of the opinion that an application merits further examination, it assigns the case to a committee or a chamber. In the course of the procedure the state against which the application is directed is informed about the application. It has the opportunity to submit arguments in its defence to which, in turn, the applicant can reply. In addition to that, the applicant and the state may try to reach a friendly settlement.
If the parties do not reach a settlement, the European Court of Human Rights renders a judgment (or a decision, which only regards the admissibility). In certain cases, the applicant can appeal the judgement. In that case, the Grand Chamber of the European Court of Human Rights decides.
Result of a procedure before the European Court of Human Rights
Recognition of a violation
The European Court of Human Rights scrutinizes whether rights entrenched in the European Convention on Human Rights have been infringed upon. If the Court comes to the conclusion that this is the case, it holds that there has been a violation. This ruling as such does not have a direct effect. In particular, the Court cannot quash or alter judgements by domestic courts. The ruling that Convention rights have been breached provides, on the one hand, moral satisfaction for the applicant. It is also a reminder for the state to observe its obligations under the Convention.
On the other hand, procedure codes in states parties to the ECHR usually contain provisions to the effect that an applicant is entitled to a retrial or to compensation if the European Court of Human Rights has found in his favour.
In addition to that, the European Court of Human Rights may grant a compensation to a successful applicant. There is compensation for pecuniary damage and compensation for non-pecuniary damage. Compensation for pecuniary damages means that the applicant is reimbursed for measurable financial or material losses he has suffered because of a violation of his rights. The Court frequently awards compensation for pecuniary damages when the applicants‘ right to property has been violated (however, this is not the only category of cases in which pecuniary damage is awarded).
Compensation for non-pecuniary damage is to reimburse the applicant for the distress he has suffered due to the violation of his rights. The European Court of Human Rights has discretion as to whether it grants compensation for non-pecuniary damage and in what amount. In many cases sums awarded range vom 2.000 – 10.000 €.