What is an application to the ECtHR?
By lodging a complaint with the European Court of Human Rights (ECtHR), citizens can ask an international court to examine whether a particular state act violates their fundamental rights under the European Convention on Human Rights (ECHR). An individual complaint to the ECtHR thus offers an additional legal remedy if all remedies within a state have been exhausted.
The procedure at the ECtHR
Examination of a violation of the European Convention on Human Rights
The proceedings on a complaint to the European Court of Human Rights deal with the question of whether a state has violated the European Convention on Human Rights.
Germany has signed the European Convention on Human Rights (ECHR). It contains a catalogue of certain fundamental rights and freedoms. These include the right to life, the prohibition of slavery and forced labour, freedom of assembly and the right to a fair trial. States that sign the ECHR thus undertake to guarantee these rights to all persons within their jurisdiction. To ensure that states also fulfil their obligations under the ECHR, there is a separate court and that is the European Court of Human Rights.
What is the ECtHR?
The ECtHR is an international court based in Strasbourg. It is part of the Council of Europe, an international organisation with 47 member states. All states that become members of the Council of Europe must sign the ECHR and thus submit to the jurisdiction of the European Court of Human Rights. They thus grant people within their jurisdiction the right to lodge a complaint against them with the ECHR.
A judge is appointed to the ECtHR from each member state of the Council of Europe. There are therefore 47 judges working there. However, the judges are not there as representatives of the country they come from. This means that they do not have to and are not allowed to represent the national interests and are not subject to instructions from the country they come from. Rather, they judge independently and are only bound by the law. Nor can the member states of the Council of Europe simply appoint the judges themselves. Each country submits a list of three candidates to the Council of Europe. The Parliamentary Assembly of the Council of Europe then selects a candidate from this list.
Judges at the European Court of Human Rights must be of high moral standing and either possess the qualifications required for appointment to the judiciary or be legal scholars of recognised standing. They are elected for a term of nine years. They may not be re-elected or appointed after that period.
An important organ of the Court of Justice is the registry. Numerous lawyers from States party to the ECHR work there. They prepare the judges’ decisions and carry out legal research. Among other things, this is intended to ensure that the judges have a thorough understanding of the procedure leading to the complaint to the ECHR. In addition, the Registry is responsible for the organisational procedures at the Court.
Role of the ECtHR
Anyone who believes that they have been violated in rights that they are entitled to under the ECHR can lodge a complaint with the European Court of Human Rights. (However, certain conditions must be met; see below). It is directed against the state responsible for the violation of rights. This procedure is also known as a human rights complaint.
The Court then examines whether there has actually been a violation of rights enshrined in the ECHR – and only that. The ECtHR does not carry out a full legal review of judgments of national courts. It does not deal with the question whether the German courts have correctly applied provisions of German law in their judgments (or whether the courts of other States party to the ECHR have applied their respective national laws). Nor does the Court examine the findings of fact by national courts. There is therefore no point in lodging a complaint with the ECHR on the grounds that the courts believed a witness, but the witness actually lied or that a document, on which a German court based its findings, was forged.
The Court of Justice does not deal with these questions. It examines the case only with a view to determining whether it can find an infringement of an article of the ECHR. This is due to the Court’s task: according to Article 19 ECHR, this consists in ensuring that the obligations which the States Parties have taken on under the ECHR are respected. It follows that the ECtHR is concerned only with compliance with the ECHR and the Additional Protocols, but not with the correct application of national law.
A complaint to the ECtHR therefore has a chance of success only if a provision of the Convention is found which may have been infringed.
Admissibility of an appeal to the ECtHR
A complaint to the European Court of Human Rights can only be lodged by those who are themselves directly affected by a state measure. It is therefore not enough to believe that a law or an action of a state violates the ECHR. It is much more important to be affected oneself, to feel the measure, as it were, on one’s own body.
Exhaustion of domestic remedies
Before lodging a complaint with the ECtHR, one must have exhausted all domestic remedies. This means that you must first bring the case before a court and go through the full range of courts. As a rule, if you are dealing with proceedings in Germany, you must also file a constitutional complaint. Only when all domestic remedies have been unsuccessful is the path to the ECtHR clear.
The requirement of exhaustion of national remedies has a further aspect: if you intend to lodge a complaint with the ECtHR, you must already raise the legal issue on which you base your complaint before the national courts. It is not, for example, possible at national level to simply complain that one’s freedom of expression has been violated and then suddenly claim before the European Court of Human Rights that there has been a violation of the right to property.
The reason for this requirement is the principle of subsidiarity. The ECtHR should intervene when states fail to meet their obligations under the European Convention on Human Rights. The ECtHR therefore acts when the state has failed. Before the Court takes action, the state must first be given the opportunity to correct errors itself. It can only do so if the person concerned goes through the state’s courts and points out the error.
The appeal to the ECtHR must be filed within six months (the 15th Additional Protocol to the ECHR provides that this period should be reduced to four months. The Additional Protocol will enter into force once all the States party to the ECHR have signed it). The period begins to run with the notification of the decision on the last effective legal remedy filed by the person concerned (i.e. in the case of appeals against Germany, as a rule with the notification of the decision of the Federal Constitutional Court).
What is the procedure at the ECtHR?
The cornerstones of the procedure at the ECtHR are regulated by the European Convention on Human Rights. Details are set out in the Rules of Procedure of the Court. The Rules of Procedure are adopted by the judges of the ECtHR themselves and are regularly updated to take account of new developments. At first it seems unusual that the judges themselves decide on the rules of procedure, to which they are then bound. However, this is a common practice in international courts.
The procedure at the European Court of Human Rights is initiated by filing an appeal. You must use a form for this purpose. (There are exceptions to this rule, but they are very rare) The appellant must attach to the form copies of all the documents that the ECtHR needs for its decision. These are mainly the judgments in the case.
When the appeal form is received by the ECtHR, the Registry of the Court of Justice first checks that it is fully completed and signed. The Court then decides who should deal with the appeal. In principle, a single judge, a committee of three judges or a chamber of seven judges can decide on a case. A single judge will decide if the appeal can be dismissed without further examination. A single judge cannot declare the appeal well founded. The only decision he can take is to dismiss the appeal.
If the Court considers that the appeal requires further examination, it shall be assigned to a committee or a chamber. In the further course of the procedure, the Court then informs the State against which the complaint is directed that a complaint has been received. The State then has the opportunity to submit its observations. In turn, the complainant may submit comments. In addition, the complainant and the State may attempt to reach an amicable settlement.
If no amicable settlement is reached, the Court of Justice shall decide the case. Under certain conditions, an appeal may still be lodged against the judgment of the Court of Justice. It is then decided by the so-called Grand Chamber of the ECtHR.
Do I need a Lawyer for proceedings before the ECtHR?
From a legal point of view, I do not need a lawyer to lodge a complaint with the ECtHR. Any complainant can lodge a complaint himself; the complaint is not rendered inadmissible by the fact that the complainant does not have a lawyer (so here, unlike in Germany, the situation is different in proceedings before the regional courts). However, this only applies to the filing of the appeal. At a later stage of the procedure, when the State against which the complaint is directed is informed of the complaint (see above for the procedure), the complainant must instruct a lawyer. He will be informed of this in writing and will then have time to find a lawyer.
However, it is advisable to engage a lawyer as early as the drafting of the complaint. The formal requirements for a complaint are high and the case law of the Court of Justice is extensive and widely ramified. As a rule, only lawyers will be able to identify the essential points and summarise them in such a way that the violation of the ECHR becomes clear.
Lawyers do not need a special licence to practice before the European Court of Human Rights (unlike something at the Federal Court of Justice in civil cases). There are also no requirements regarding professional experience or similar. Lawyers do not need to be admitted in the country against which the complaint is directed. For example, a German lawyer can represent a Swiss citizen against Switzerland.
Costs of proceedings before the EctHR
The ECtHR does not incur legal costs. If a complaint is unsuccessful, the complainant is not obliged to reimburse costs incurred by the State against which the complaint is directed – for example, by having the State represented by a lawyer or another legal representative. This is to prevent people from being prevented from asserting their rights by fear of costs.
The costs of proceedings before the ECtHR thus correspond to the costs incurred by the appellant in instructing a lawyer. If the appeal is successful – i.e. if the ECtHR finds that the ECHR has been infringed – the Court generally decides that the State must reimburse the complainant for his costs. However, the ECtHR only orders reimbursement of those costs which it considers necessary. These are not only the fees that the Lawyers’ Fees Act provides for representation before the ECtHR. The amounts can be significantly higher. However, it may also happen that the Court considers a lawyer’s fee to be excessive and therefore does not order full reimbursement of the costs.
The ECtHR also offers the possibility of legal aid. However, legal aid is not granted for filing an appeal. On the contrary, legal aid is only available from the moment the government of the State against which the appeal is directed is informed of the appeal.
Outcome of proceedings at the ECtHR
Finding a violation of the ECHR
The ECtHR examines whether there has been a genuine infringement of rights guaranteed by the ECHR. If the Court considers that this is the case, it first establishes that there has been an infringement. This finding has no direct consequences in itself. In particular, the Court cannot set aside or amend judgments of national courts (see below). On the one hand, the finding of the Swidbert Convention is a moral satisfaction for the person concerned. On the other hand, the finding is a reminder for the State to fulfil its obligations under the ECHR.
In addition, the ECtHR may award compensation to the person concerned. A distinction is made here between compensation for material damage and compensation for non-material damage
Compensation for material damage is compensation for financially measurable losses suffered by the person concerned. The Court of Justice can award such compensation, for example, if expropriation has infringed the right to property.
Compensation for non-material damage, on the other hand, is more concerned with compensating for the physical or psychological damage suffered by the victim as a result of the violation of his rights. It is at the Court’s discretion whether and to what extent it awards the complainant for non-material damage. The amounts involved are often between €1000 and €2010 – with exceptions in both directions.
Consequences for the proceedings in Germany
As already mentioned, the European Court of Human Rights cannot alter the judgments of national courts. For example, if a complainant in a civil action for damages and the Court finds that the right to a fair trial has been violated in the process, he or she cannot dismiss the action.
Nor can the ECtHR set aside judgments of German courts and order new proceedings. For example, if the Court finds that a German court has violated the right to a fair trial in criminal proceedings (examples of such cases can be found here and here), it cannot set aside the judgment of the German court or order a new trial. Again, the ECtHR can only find that there has been a violation of the Convention and, if necessary, award damages.
However, there are provisions in German law under which proceedings can be reopened if the European Court of Human Rights finds that the ECHR has been violated. For example, for criminal proceedings, Section 359 of the German Code of Criminal Procedure No. 6 provides: The reopening of a case which has been finally adjudicated in favour of the convicted person is permissible if the European Court of Human Rights has found a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms or its protocols and the judgment is based on this violation.
Similar provisions exist, for example, in § 580 No. 8 of the German Code of Civil Procedure or in the Administrative Court Rules (here in § 153, which refers to the Code of Civil Procedure)