Before filing a complaint with the ECHR , it is necessary to determine whether the issue is within its jurisdiction. To do this, select one or more of the articles enshrined in the Convention and protocols that are most appropriate to the situation. Further on these issues, the decisions of the ECHR should be examined . If the applicant believes that the dispute may be resolved, then he can begin preparations for the direction of the relevant papers. Let us further consider the procedure for filing a complaint with the ECHR.
General information
The ECHR is an international body. Its jurisdiction extends to all CE member states that have ratified the Convention for the Protection of Fundamental Freedoms. The jurisdiction of the instance includes the consideration of all issues that relate to the interpretation and application of this document. The ECHR and Russia have been cooperating since 1998.
Preparatory stage
To make a statement correctly, you must have:
- ECHR form .
- Text of the Convention and protocols.
- Power of attorney. If the appeal to the ECHR is sent by a representative, then this document acts as an integral element of the official application form. If subsequently it is necessary to change the attorney, a special power of attorney is drawn up.
- 2-3 ECtHR judgments in similar cases.
- Official instructions for filling out forms.
- Rule 47 established by the Rules.
- Practical guidance on signs of acceptability.
Only a lawyer can act as a representative. Another person is allowed to act in exceptional cases (according to Rule 36 of the Rules). In some cases, the subject may be allowed to self-represent. It is not necessary to formally have a lawyer at the stage of sending the application.
Term
A statement to the ECHR is a last resort. It can be used only if the subject has passed the higher authorities in his country. Six months are given to submit a statement to the Strasbourg court . The calculation of the term starts from the date of adoption by the highest state authority of the relevant disputed act.
Important point
Of particular importance are events that preceded the direction of the statement. In particular, this refers to domestic proceedings. The possibility of applying to the ECHR should leave a certain imprint on the tactics of conducting proceedings in national courts. First of all, in all places where it will be appropriate and necessary, reference should be made to the Convention and international practice. Relevant instructions can be included directly in the lawsuit, application, recall and other procedural documents. In addition, national authorities must raise questions regarding the violation of freedoms and rights protected by the Convention. Statements about this can relate to both already accomplished and probable facts. Reference to specific provisions of the Convention is not necessary. In such cases, it is enough to indicate the essence of the committed or possible violations. In practice, however, a reference to the provisions of the Convention in proceedings before national courts will be extremely useful. This can subsequently have a positive effect on the outcome of the case.
Eligibility criteria
The complaint to the ECHR, the sample of which will be described later, must meet a number of requirements. It is necessary that it be:
- Justified.
- It is aimed at protecting freedoms and rights enshrined in the Convention and protocols.
- Filed against a country party to the agreement.
- Sent after the exhaustion of all effective legal remedies and on time.
Explanations
A complaint to the ECHR in civil proceedings shall be sent within six months from the date of the adoption of the disputed act of the fourth instance. This refers to the second cassation. A complaint to the ECHR in a criminal case is sent after the appeal. If the proceedings were in arbitration, a statement is drawn up after the first appeal. At the same time, you should contact the Armed Forces of the Russian Federation. If the proceedings were conducted under the Code of Administrative Offenses, the application is sent after the act is issued by the second instance.
What can be challenged?
The complaint to the ECHR is directed only to the actions of the state. In other words, claims can be formulated exclusively to state bodies. These include the courts and the police. In some cases, the responsibility of the country for the inaction / actions of legal entities that are not state is provided. The ECHR is a body that considers applications related only to the violation of freedoms and rights protected by the Convention and protocols. Most of them relate to Art. 6. It provides for the right to a fair trial. Meanwhile, not all proceedings fall under this article. For example, the ECHR cannot consider disputes about customs and tax payments related to immigration issues (entry / exit, expulsion of foreigners, representation of political asylum), as well as cases involving public servants regarding dismissal.
Reasons for rejection of application
A complaint to the ECHR may be made in compliance with all the criteria provided. However, in this case, too, it may be rejected. The reasons are:
- Challenging the decisions of the national court, in connection with the violation of state material and procedural rules, the unreasonability of the issued acts. The latter may be due to misinterpretation and application of internal legal documents, for example.
- The justice of the outcome of the civil litigation.
- Innocence or guilt in a criminal case.
- Lack of evidence.
All these reasons are related to non-compliance with the structure and content of the application.
General design rules
The application to the Court (ECHR ) is not allowed to be in free form. The regulation of the instance provides for a special form. The form consists of 13 pages. However, not always information can be placed on them. In such cases, it is allowed to draw up applications. There should not be more than 20 pages. Moreover, applications cannot contain new facts or claims. The main text should fit (briefly) on 13 pages. In applications, you can supplement what has already been written. At registration it is necessary to clearly understand which particular provisions of the Convention were violated. To do this, we study the practice of the court in them and similar cases. This is important for a number of reasons. Firstly, study allows a better understanding of the content of freedoms and rights protected by the Convention. In addition, the logic and text of the articles should be reflected in the complaint. In the statement, it is necessary to avoid pointing out facts that are not relevant to the dispute, as well as excessive argumentation. Very often, plaintiffs make a mistake, giving all possible arguments. Such statements lose credibility, their essence is eroded.
ECHR complaint: sample
The official Instructions provide a fairly detailed explanation of design issues. Of particular difficulty is filling out sections on facts and violations. Let's consider everything in order:
- Sheet 1. Point 0 - barcode and number. Since there are none, nothing is written here. In paragraphs 1-15, information about the applicant is indicated. If the complaint is sent to the ECHR by an individual, then the left column of paragraphs 1-8 is filled out. Nothing is written on the right side. If the applicant is a legal entity, 9-15 points are filled out.
- Sheet 2. Here you need to put a checkmark in front of the country that violated the freedoms and rights of the applicant. As a rule, a dispute is conducted with one state. However, in some cases, an application to the Strasbourg court may also be filed against several countries. Accordingly, you need to check the boxes in front of them.
- Sheet 3. Information about the representative is indicated here. If it is not, then the sheet remains empty. If there is a representative, information is entered in the left column (18-25 points). If he is a lawyer, then the right part is filled out (paragraphs 26-32). The left column in this case remains empty. If there is a representative, signatures and dates are put (paragraphs 33, 34 - by the applicant, 35.36 - by the attorney). Sheet 3 acts as a power of attorney. Other documents confirming the authority of the person are not attached to the complaint.
- Sheet 4. Information is indicated here similarly to the previous page. This part is drawn up if the representative is a legal entity.
Sheets 5-7
Paragraphs 56–58 set out the facts. It should be said that any item of the complaint is relevant. If information is not available in any of them, then the secretariat staff may consider the application as not executed. In this case, one should not forget about the content. In establishing the facts, it is necessary to be guided by rule 47 of the Rules. They should be summarized and readable. The text must be divided into paragraphs with numbers. Events must be described in the order in which they took place. If the claims relate to different subjects (litigation), each of them is set forth separately.
Recommendations
When presenting the facts, the texts of cassation, appeal, and supervisory complaints should not be used. It is only necessary to describe the circumstances, without giving their own assessment. For example, such wording should be avoided: “The judge unreasonably and illegally fell asleep at the meeting” (the following statement will be correct: “During the consideration, the judge fell asleep”). It is only necessary to write about those facts that are relevant from the point of view of practice and the Convention. Specialists recommend the presentation of information from a third party. For example: "The applicant was not notified of the time of the meeting." In the presentation, it is necessary to adhere to the style used by the European Court of Justice (ECHR ) in its acts. Documents can be cited only when necessary and appropriate. However, in any case, bringing some excerpts should be brief. For example, a significant argument is the court’s refusal to call the main witness. In this case, you can specify the following. “The court refused the request to call the witness to the hearing, reasoning that“ evidence is enough. ”Despite the need to keep it short, all essential facts need to be stated. If new circumstances are brought up already at the stage of preparing the case, they will not be taken into account A prerequisite for describing the events is specificity. Abstract descriptions should not be allowed. For example, if the applicant indicates poor conditions during his detention, you need to write how many hours / days this is continues, the number of people and beds, the size of premises and so forth.
Statement of violations, description of the used protective equipment
First of all, Sheet 8 is filled out (paragraph 59). On the left is an article of the Convention (number) and protocol. On the right is a violation and supporting evidence. Arguments will differ according to events and circumstances. Sheet 10 provides information on the legal remedies that were used before the application was filed. The article number is also indicated on the left, and information on the most recent decision (title, number, date) is indicated on the right. The following are acts of lower instances.
Sheet 11 Questions
Paragraph 62 should indicate whether the applicant has or had any legal remedy that he did not use. If the answer is yes to this question, paragraph 63 gives a description of it. It also explains the reason for not taking action. Paragraph 64 should answer the question of whether the above complaint was lodged with other bodies of international justice or regulation. If the answer is yes, then paragraph 65 provides a brief description of the procedures. In particular, it indicates which particular statements were drawn up, the name of the authority, the date and content of the act issued by it. In the next paragraph 66, it is necessary to answer the question whether earlier other complaints were sent to the ECHR. If the answer is yes, then in paragraph 67 their numbers are given.
List of applications
It is indicated on Sheet 12. Before completing this section, you need to carefully consider which documents it is advisable to attach to the application. On the one hand, absolutely no papers should be attached to the complaint. Along with this, all relevant documents must be present. The Instructions on this subject explain the following. It is necessary to attach all judicial and other acts to which the applicant refers in the sections of the complaint, as well as other documents that are provided as evidence of violations of the Convention and protocols. This can be testimony, conclusions of medical institutions, etc. In the list of applications, you must specify the number of pages on which the papers are located so that they can be easily found. If there is not enough space in the form, you can use an additional sheet. The application is accompanied by legible and complete copies of all the papers indicated on the list. It should be said that papers are not returned to applicants. In this regard, it is better to attach copies.
Nuances
The applicant must:
- Lay out the paper separately for the processes in chronological order.
- Number all pages sequentially.
- Do not staple, fasten, or glue documents.
Legal advice
The applicant independently decides which documents he will attach to the complaint. However, in any case, it is necessary to include in the list the acts of the second and first instances, a copy of the appeal statement. If there are copies of acts of higher authorities, then it is also advisable to attach them together with supervisory (cassation) complaints. If the application is related to the defense of the right to a fair trial, it is appropriate to include in the list of documents a copy of the minutes of the meeting. There is no need to certify copies. The ECHR accepts absolutely any documents as evidence. For example, it is allowed to attach printouts from sites, information from reports of non-governmental and state institutions, and so on.
Final points
In Sheet 13, paragraph 69, you can leave it blank if the applicant has nothing to add. If there are any points that can be said additionally, they should be cited. For example: "I draw attention to the fact that a copy of the decision of the second instance of February 1, 2015 was received only on May 10, 2015." Paragraph 70 sets the date. As a rule, it will be considered the day of filing the complaint, even if it arrives in the Court in a few days (if the dispatch was made in the near future). In paragraph 71, a mark is put in the desired position and signature. If a complaint is submitted from more than one entity, it is advisable to provide a transcript. Paragraph 72 should indicate the address to which correspondence will be sent. As a rule, the answer from the ECHR comes in a regular letter. The address indicated in paragraph 72 must be stable. The trial may continue for several years. You can, of course, send an additional letter with a notification of a change of address. But often the secretariat forgets this and forwards the correspondence as directed.
Submission of application
The complaint is sent by letter. It can be simple, valuable with an inventory, registered with a notice. Forwarding is carried out by "Russian Post", various courier services. Sending a letter is a prerequisite. The complaint is sent to:
The registrar
European court of human rights
Council of europe
F-67075 Strasbourg Cedex.
You can also duplicate the application by fax: +33 (0) 388 41-27-30. The average cost of services will be as follows. If, for example, the letter includes 50 pages, any attachments, except for copies of documents, are missing, then Russian Post will take about 400 rubles, DHL - 4 thousand rubles, UPS - 3 thousand rubles.
Answer
The first main letter will come within 1-13 months. In it, the secretariat notifies the applicant of the receipt of the complaint and the formation of a dossier. His number should subsequently be indicated in all correspondence. In addition, the letter will have a set of stickers containing a barcode. They will also need to be used in the process of correspondence. If the letter does not contain an indication of the need to send additional securities, then it will contain information that the application will be considered in order of priority. In some cases, intermediate answers come. The second main letter will indicate that either the complaint is inadmissible, or it has undergone a preliminary analysis and the defendant has been notified of it. From the moment the act is issued in the latter case, the stage of communication begins. In fact, at this stage, a ruling of the European Court of Human Rights is being prepared. If the application is rejected, then the answer usually comes within the first 2 years. The second letter may arrive in the first 2-3 months. This is possible if the Court, on its own initiative or at the request of the applicant, adopts an expedited proceedings. The reason for this may be the existence of a threat to health associated with the private (family) life of the applicant, his child. In an expedited manner, complaints may also be considered for which interim measures have been taken, in accordance with Rule 39 present in the Rules.
Conclusion
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