When and how to seek justice through the European Court of Human Rights

Manual for internally displaced persons in Ukraine. Prepared by Ganna Dudinska, lawyer of the Liaison Officer (RADNYK) Programme

Any person, non-governmental organisation or group of individuals claiming to be the victim of a violation of rights enshrined in the European Convention on Human Rights may apply to the European Court of Human Rights (ECtHR) to protect their rights because of actions or omissions by a state and those who did not receive sufficient compensation.

Lawyers distinguish between direct victim, indirect victim and potential victim depending on the impact of actions or omissions by a state on the person. It is necessary to pay attention to these details in application where you are to refer to the conventional rules and existing juridical precedent. Particularly, Art. 14 of the ECHR on the prohibition of discrimination. In 99 % of cases, this article comes together with other material breaches.

Step 1.

An applicant are to exhaust all domestic remedies, since subsidiarity is one of ECtHR principles for protecting human rights. This means that before submitting an application to the ECtHR, it is necessary to comply with the final decisions of the national courts, i.e. the decision of the Supreme Court of Ukraine (SCU). At first it is essential to apply to a district or city court. In case the judgement given by the district or city court does not satisfy the plaintiff, he/she is to apply to the court of appeal, and then to the SCU. The ECtHR may comply with the rule of “final decision of national courts” depending on circumstances, for example,  when the proceedings before the national courts are unreasonably delayed.

Step 2.

If the final domestic decision is taken, you can submit an application to the ECtHR. It should be noted that Protocol 15 reduces that period from 6 months to 4 months. You should post an application to the ECtHR as soon as possible, and in any event before the time limit expires. It is essential that all the information required in an application is provided as precisely and accurately as possible. It can not be anonymous. Moreover, your application may be declared inadmissible if the Court or another international body, such as the UN Human Rights Committee, has already examined an application previously brought by you relating to the same facts and the same complaints. The application must be compatible with the provisions of the Convention or the Protocols thereto. Your application may be declared inadmissible for abuse of the right of application. This is the case if you mislead the Court by providing false information, use abusive language, breach the duty of confidentiality in friendly-settlement negotiationsб when  an application manifestly vexatious or devoid of any real purpose. The ECtHR may declare inadmissible any individual application where the applicant has suffered no significant disadvantage. However, the Court may not declare such an application inadmissible where respect for human rights requires an examination of the application on the merits, as well as no case may be rejected under this new criterion which has not been duly considered by a domestic authority.

Significant disadvantage hinges on the idea that a violation of a right should attain a minimum level of severity to warrant consideration by an international court. Violations which are purely technical and insignificant outside a formalistic framework do not merit European supervision. The assessment of this minimum level is relative and depends on all the circumstances of the case.

Step 3

If the applicant chooses to be represented, the representative is to fill in a separate application form – Authority form, and attach it to the application. Where an applicant or representative lodges complaints on behalf of two or more applicants whose applications are based on different facts, a separate application form should be filled in for each individual, giving all the information required. The documents relevant to each applicant should also be annexed to that individual’s application form. Where there are more than five applicants, the representative should provide, in addition to the application forms and documents, a table setting out the required identifying details for each applicant. Templates of forms necessary, tips, frequently asked questions, manuals (including Russian-language) are available on the website.

When you have completed every part of the application form, send it to the following address together with copies of the relevant documents: The Registrar, European Court of Human Rights, Council of Europe, F-67075 Strasbourg cedex.

It is possible to win the case in the ECtHR, but it is necessary to get familiar with the judicial precedents and to build a strategy. Moreover, the state must comply with the Court’s judgement within three months. For instance, in the cases concerned the violation of the right to pension, the average amount of compensation awarded by the ECtHR is 8,500 euros or approximately 277,000 UAH. In 2016 Ukraine’s expenses in the lost pension cases has been 612 million UAH.

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