Bringing a Case before the European Courts

Elahe Mohtasham (Ms.)
mail@mohtasham.net
January 2005

The following laws and procedural points have been provided for general reference purposes by Elahe Mohtasham. Please consult a qualified lawyer in relation to a specific legal case.

The European Convention on Human Rights & Procedures Involved in Applying to the European Court of Human Rights:

1. Historical Background to the European Convention on Human Rights:

In order to prevent violations of human rights suffered by the European countries during the second world war, the Council of Europe was established by the ten member states of Europe (including the UK) through the Statute of the Council of Europe 1949. The Council of Europe's main decision-making organisations are the Committee of Ministers and the Parliamentary Assembly. The European Convention on Human Rights was written by the Council of Europe in 1950 as a way to enforce and implement the 1948 United Nations Universal Declaration of Human Rights. It opened for signature on 4 November 1950 in Rome and entered into force in September 1953. The Convention provided a framework of civil and political rights and freedoms, and provided a mechanism for the enforcement of the obligations entered into by contracting States. Three institutions were made responsible for supervising the work of the Convention. These were the European Commission of Human Rights founded in 1954, the European Court of Human Rights founded in 1959 and the Committee of Ministers of the Council of Europe (composed of the Ministers of Foreign Affairs of member States or their representatives). The European Court of Human Rights is composed of a number of judges equal to that of the Contracting States. Judges are elected by the Parliamentary Assembly of the Council of Europe for a period of six years. The judges do not represent their own states but act as individuals in their own capacities as judges.

2. An application to the European Court of Human Rights has to be submitted within a period of six months from the date on which the final decision at British Court (e.g. at the Court of Appeal or at the House of Lords) was taken. The limitation period of six months is strictly applied. If the last order of the British court has been from the Court of Appeal's refusal to permit an appeal to the Court of Appeal, the six month limitation period starts from the date of the order from the Court of Appeal which has refused permission to appeal to the Court of Appeal.

i. The Preliminary Step: Before submitting an application to the European Court of Human Rights, the applicant has to write to the House of Lords to obtain a letter of confirmation that all domestic remedies has been exhausted in the United Kingdom. Even if the applicant is not permitted to appeal to the House of Lords, the letter from the House of Lords would confirm in writing that there is nothing further the applicant would need to do to satisfy the requirement, laid down by article 26 of the European Convention on Human Rights, that all domestic remedies must be exhausted before an appeal can be made to the European Court of Human Rights. The letter from the House of Lords would be accepted by the European Court of Human Rights as establishing the applicant's compliance with domestic remedies rule in respect of the jurisdiction of the House of Lords in the case.

The contact details of the House of Lords: Judicial Office, House of Lords, London SW1A OPW. Tel: 020-7219 3111; Fax: 020-7219 2476; website: http://www.parliament.uk

3. An Introductory Letter: Under Rule 47 (5) of the European Court of Human Rights, an introductory letter could be sent to stop the clock for satisfying the six months limitation time, instead of the full application form, if the applicant is close to deadline of six months limitation period. The introductory letter could be sent by mail, fax or email, outlining the main points in the case together with a copy of the final order obtained from the British court. It would be advisable to phone the European Court of Human Rights to make sure that they have accepted the information contained in the introductory letter as sufficient to stop the clock for satisfying the six months limitation period.

The contact details of the European Court of Human Rights: REGISTRA, THE EUROPEAN COURT OF HUMAN RIGHTS, COUNCIL OF EUROPE, F-67075, STRASBOURG CEDEX, France. Tel: 0033 - 388 412018; Fax: 0033 - 388 412730; http://www.echr.coe.int

4. The Application Form to submit the case for registration at the European Court of Human Rights could be obtained from the European Court of Human Rights' website: http://www.echr.coe.int

5. A full application and supporting documents could be sent, at a later stage, after the introductory letter. The period for sending all the documents and the full application form could be agreed by phoning and writing to the European Court of Human Rights, and discussing the matter with the lawyer assigned to the case at the European Court of Human Rights.

6. Procedure for Representation: Under Rule 36 (4) (a) of the European Court of Human Rights, an individual would be able to submit an application to the European Court of Human Rights without the need for a representation by a lawyer. However, if an applicant wishes to be legally represented, the representative has to be either a resident and an authorised practicing lawyer in one the European Convention states, or the applicant has to obtain the permission of the European Court of Human Rights to be represented by some other person.

7. The First Stage of Admissibility: At the first stage, the cases have to pass the admissibility test before they could proceed to the European Court for final determination. Most cases tend to fail on the admissibility stage. Following the registration of an application (i.e. when the Court receives the full application form and relevant documents) a single judge called 'Judge Rapporteur' would examine the documents, write a report and decide if the case would likely to pass the admissibility case. The Judge Rapporteur may determine that either of the parties would need to provide further material or whether a committee of three judges or a chamber of seven judges should make a decision as to the admissibility of the case. Only if there is a unanimous decision, a committee of three judges normally make the final decision regarding the admissibility of a case. Some cases may be determined by a chamber of seven judges. The most important cases may be passed to a grand chamber of seventeen judges. If either of parties believe that a hearing would clarify factual issues or that a hearing would assist the admissibility of a case, they would be able to apply for a hearing at this stage.

i. Admissibility Criteria under Articles 34 and 35 of the European Convention on Human Rights:

Article 34: Individual applications "The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."

Article 35: Admissibility Criteria

"1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.

2. The Court shall not deal with any application submitted under Article 34 that

a) is anonymous: or

b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.

3. The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the protocols thereto, manifestly ill-founded, or an abuse of the right of application.

4. The Court shall reject any application which it considers inadmissible under this Article. It may do so at any stage of the proceedings."

8. The Estimated Period for the Determination of a Case: If a case passes the admissibility stage, it would normally take four or five years for a case to be determined and a judgement pronounced by the European Court of Human Rights.

9. Costs: There are no court fees payable to the European Court of Human Rights at any stage of the proceedings. If the applicant loses or decides to withdraw or settle a case, there would be no requirement on the applicant to pay the respondent Government's costs. However, if the application succeeds, the applicant's reasonable costs could be recovered from the respondent's Government. According to Article 14 of the European Convention on Human Rights, an applicant's pecuniary and non-pecuniary costs would be awarded under an award termed as "just satisfaction."

10. Legal Aid: There exists a legal aid system, within the European Court of Human Rights, for those applicants whose cases are passed the admissibility stage. The European Court of Human Rights would send the necessary forms for the legal aid which would be based on the financial assessment of the Applicant. The legal aid would cover the cost of employing a lawyer and any reasonable expenses for attending any possible hearings at the European Court of Human Rights in Strasbourg in France.

11. Urgent and Interim Applications: Some applications to the European Court of Human Rights which are of urgent, life threatening or interim nature (such as matters involving an interim injunction granted against a person by the British courts) could be dealt with on urgent or priority bases under Rules 39, 40 & 41 of the European Court of Human Rights.

12. Sources of Information on the Internet:
i. The text of the European Convention on Human Rights & Rules of the European Court of Human Rights: http://www.echr.coe.int/eng/basictexts.htm
ii. The judgements of the European Court of Human Rights, their effects on the Governments' policies & search facilities of the case laws:   http://www.echr.coe.int/Eng/Judgements.htm
iii. Press Releases:   http://www.echr.coe.int/Eng/PressReleases.htm
iv. Links to the Council of Europe's website dedicated to the execution of judgements of the European Court of Human Rights:  http://www.coe-int/T/E/Human-rights/execution

The following laws and procedural points have been provided for general reference purposes by Elahe Mohtasham. Please consult a qualified lawyer in relation to a specific legal case.

Elahe Mohtasham (Ms.)
mail@mohtasham.net
January 2005

Possible Procedural Irregularities at Courts and Tribunals:

The following laws and procedures would be available in order to submit a complaint in cases of procedural irregularities in the course of a judicial act, unfair, degrading, or humiliating manner in which a court or tribunal (including a judge or chairman) may treat a party:

1. Section 6 (1) and (3) of the Human Rights Act 1998: 1. It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
3. In this section Œpublic authority¹ includes (a) a court or tribunal.

2. Section 7 of the Human Rights Act 1998: 1. A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6 (1) may bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, of the Human Rights Act.

3. Section 9 (3) of the Human Rights Act 1998: in relation to compensation for damages caused by the Judicial acts.

4. The Crown Proceeding Act 1947: states, civil proceedings against the Crown or officer of the Crown would be dealt with at the High Court, and the Lord Chancellor should be informed and be joined (if the Lord Chancellor wishes to be joined) in respect of a violation of rights under section 7 (1: a) of the Human Rights Act.

5. A complaint arising in an Employment Tribunal would be submitted to the Employment Appeal Tribunal because

i. under section 9 (1) (a) of the Human Rights Act 1998: ³1) Proceedings under section 7 (1) (a) in respect of a judicial act may be brought only (a) by exercising a right of appeal." In the case of the Employment Tribunals, the right of appeal would lie with the Employment Appeal Tribunal. An appeal to the Employment Appeal Tribunal has to be made within 42 days of the order of the Employment Tribunal. The time limit of 42 days is strictly applied.

6. Article 6 of the Human Rights Act 1998: Right to a fair hearing and a fair trial within a reasonable time.

7. Article 3 of the Human Rights Act 1998: Prohibition of torture, inhuman, degrading treatment or punishment.

8. Article 14 of the Human Rights Act 1998: Prohibition of Discrimination in relation to benefiting from Articles 6 and 3 of the Human Rights Act 1998.

9. Article 1, taken together with Article 3 of the Human Rights Act: requires the state to take measures designed to ensure that individuals within its jurisdiction are not subjected to torture, or inhumane or degrading treatment or punishment, including ill-treatment.

10. The European Court of Human Rights has applied the following definitions to the meaning of degrading treatment or punishment: treatment, which arouses in the victim feelings of fear, anguish and inferiority capable of humiliation and debasement and possibly breaking physical or moral resistance, [Ireland v UK2 EHRR 25, para. 167].

It has been established that it is sufficient if the victim is humiliated in his or her own eyes [Tyer v UK2 EHRR1, para. 23; Smith and Grady v UK (1999) 29 EHRR 493, para. 120].

In a significant decision in 1999 in the case of Selmouni v France (2000) 29 EHRR 403, the European Court of Human Rights found that, because of the need to interpret the Convention as a Œliving instrument¹, acts which had previously been classified as inhuman and degrading treatment rather than torture, could be classified differently in future: ³Š the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.²

11. Complaints about the personal conduct of members of the judiciary (including Tribunal members) could also be submitted to the Department of Constitutional Affairs at the following address: Jonathan Creer, Head of Judicial Correspondence Unit, Department of Constitutional Affairs, 5th Floor 30 Millbank, London SW1P 4XP PO Box 38528. Tel: 020-7217 4806. Fax: 020-7217 4875. Website: http://www.open.gov.uk/lcd

12. If an application to the High Court is unsuccessful, an application for permission to appeal has to be submitted normally within 14 days of the date of the order of the High Court to the Court of Appeal. If the permission to appeal to the Court of Appeal is successful, the Appellant would be able to prepare the case for the full hearing before the Court of Appeal (normally involving three Lord Justices of the Court of Appeal).

13. If the Court of Appeal refuses the permission to appeal to the Court of Appeal, there would be no right of appeal to the House of Lords. In accordance with practice direction 1.6 (a), no petition for leave to appeal may be presented to the House because under section 54 of the Access to Justice Act 1999, no appeal may be made against a decision of the Court of Appeal to refuse permission to appeal to the Court of Appeal. This section put into statute law the decision of the House of Lords in Lane v. Esdaile [1891], which established that no appeal lay to the House of Lords from a refusal by the Court of Appeal to grant leave to appeal to that Court of Appeal. Therefore, the next step would be to submit an application to the European Court of Human Rights in Strasbourg, France.

14. For Procedure to submit an Application to the European Court of Human Rights please see the Page on this website on the European Convention for Human Rights.