The Road to Strasbourg

European Convention for the Protection of Human Rights and Fundamental Freedoms was drafted by the Council of Europe and opened for signature on 4 November 1950.

As of today, almost all of the European countries have signed and ratified it, thus making the provisions of the Convention, which are based on the general principles of international law, legally binding on their territories.

The Convention is an international instrument requiring its Member States to comply with legal standards set therein which guarantee fundamental human rights, such as the right to life, the right to liberty and personal security, the right to respect of private and family life, the right to freedom of thought, conscience and religion, the right to freedom of expression, the right to freedom of peaceful assembly and association.
Special place among the Convention guarantees is held by Article 6, which provides for the right to a fair trial. The system of rights and obligations set out in it, in particular, promotes a detailed domestic legislative regulation in the area of criminal proceedings.

The European Convention on Human Rights and Fundamental Freedoms entitles all individuals and organisations within the jurisdiction of its Member States to bring complains to the Strasbourg Court, if they consider their rights to be infringed by judicial or any other official bodies of the Respondent State.

Complaints about human rights violations have practically proved themselves as one of the most serious legal means to defend the procedural rights in criminal trial. Even when a judgment by the Strasbourg Court is delayed because of the long case processing, an accused nevertheless has a real opportunity to improve his or her situation in the trial, because such complaints represents the most significant part of the European Court’s work.

Individual complaints are prepared and submitted in written form. Though the participation of a lawyer at this stage is not mandatory, correct and effective formulation of a complaint might be difficult to an applicant, because of the absence of the specific expertise in the issues of international law.

A complaint can be lodged in any of the official languages of the Council of Europe member states. A respondent, against whom an application can be lodged, should always be one of the High Contracting Parties to the Convention, i.e. a state which ratified the Convention. An applicant also has to provide concise statement of facts, from which a violation of the Convention can be clearly discerned. Usually it will be necessary to state the entire course of criminal proceedings and to provide the Court with copies of decisions complained of, as well as written submissions made by the defence during proceedings.

According to the requirements posed by the European Court, an applicant has to confirm the exhaustion of all the domestic remedies. This means that before applying to this international body, an applicant is obliged to use all existing legal mechanisms provided for by the national legislation of the country concerned. The applicant has to apply to all competent state bodies including, in the first place, domestic courts, which are responsible for providing redress for violations of civil and political rights at the domestic level.

Only after all hope for restoring justice is lost, an applicant should bring his or her case to Strasbourg.
In accordance with the European Convention, the complaint can be submitted within six months after delivery of the final judgment or decision by the domestic court. This period starts to run from the day when the applicant was served with a copy of the judgment.

Procedure for the examination of complaints is closely related to the Court’s organisation. This international mechanism consists of a number of judges equal to the number of member States of the Council of Europe that have ratified the Convention (currently there are 47). Judges are elected by the Parliamentary Assembly of the Council of Europe for a period of nine years. They may not be re-elected.

The European Court consists of 5 Sections which are formed on the basis of geographical and gender balance and reflect the different legal systems among the Contracting Parties to the Convention. The Chambers of seven judges formed within the Sections, is the core judicial formation of the entire organisation. Following the examination of a case by one of the Chambers and delivery of a judgment, parties may ask the Court to refer the case for re-examination to the Grand Chamber of the Court (in exceptional cases a chamber can relinquish jurisdiction in favour of the Grand Chamber on its own motion). According to the Rules of Court, the Chambers are formed in rotation from among the members of the relevant Section. The Chamber, when examining a case against any of the State Members, shall include the judge elected in respect of this State.

Proceedings before the Court start from the registration of an application in the Registry of the Court. For the purpose of preliminary examination, each case is assigned to Judge Rapporteur who shall determine its admissibility. If the Judge Rapporteur finds a complaint unsubstantiated or otherwise incompliant with admissibility requirements, he or she can declare it inadmissible sitting as a single judge. Such decisions are final. If the single judge does not declare an application inadmissible he or she shall forward it to a committee of 3 judges or to a Chamber for further examination.

Usually most of the complaints lodged with the European Court are dismissed at the initial stage of their examination. If the additional examination of a complaint is considered necessary, Judge Rapporteur forwards it to a Chamber or a committee of 3 judges, which decide on its admissibility. In case a complaint is preliminary considered admissible, the Court may notify the Respondent State of it. At this stage, an applicant, depending on his or her financial situation, can request free legal aid from the Court in connection with the presentation of the case and, in particular, for paying for the lawyer’s services.

After the receipt of official response (observations) from representatives of the Respondent State, the Court may consider it necessary to hold additional fact-finding missions and, afterwards, oral judicial hearings. Exceptionally, after a judgment by the Court’s Chamber or in the course of proceedings before a Chamber, a case may be referred (or relinquished) to the Grand Chamber consisting of 17 judges.

Subsequently to the communication of a case to the Respondent Government, the Court seeks every opportunity for settling the dispute between the parties in a friendly manner. There were a large number of cases, where the parties reached a friendly settlement, pursuant to the terms of which applicant were paid monetary compensation, their cases at the domestic level were re-examined or they were relieved of criminal responsibility. In such cases a judgment by the Court on the merits of the applications was no longer necessary. Quite often proceedings were discontinued because the applicants’ claims were satisfied by the State of their own motion. Respondent States often, in the absence of an outer “pressure” from the European Court, lifted the impugned measures or amended the provisions of national legislation challenged by the applicants. Friendly settlement can bring proceedings in a case to an end, if the State ensures that the provisions of the Convention will be further duly observed.

If a complaint is accepted for examination and the friendly settlement of the case seems unreachable, then the Court delivers a judgment on the merits of the case or a decision on its inadmissibility. Generally, all cases are examined in written procedure. Decisions and judgments of the Grand Chamber and the Chambers of the Court are taken by the majority of votes of judgments sitting in the formation. Decisions and judgments of the committees can be taken only unanimously. If the judges sitting in the committee cannot reach consensus they transfer the case to a Chamber. Judges also can express their concurring or dissenting opinions on the subject matter of the case.

Judgments and Decisions of the Court are obligatory for the Respondent State. At the same time, the Court cannot interfere with the matters of national sovereignty and, in particular, to quash decisions of the national courts. The European Court establishes a violation of the Convention, while the responsibility for enforcement of its judgments and decisions (payment of a compensation to an applicant, review of an applicant’s case in the light of violations found by the Court, amendments to the domestic legislation and courts’ practice, other measures aimed at restoring applicants’ rights and remedying the breaches of the Convention indicated by the Court) rests upon the Respondent State.

High Contracting Parties to the Convention undertook to abide by the final judgments and decisions in any case before the Court to which they were parties, and to take appropriate legal actions in response to judgments finding a violation against them(Article 46 § 1 of the European Convention on Human Rights). Execution of final judgments is supervised by the Committee of Ministers of the Council of Europe. The Committee sets a time-limit for the State to remedy the situation of a violation of the Convention. Measures taken within the framework of the execution can vary from quashing of relevant acts of the domestic authorities to making amendments to the domestic legislation in force.

The European Court of Human Rights does not formally act as superior instance to the domestic courts. That is why, it makes finding of a violation of the Convention provisions, for example, in criminal proceedings in the applicant’s case at the domestic level, in its judgments obliging the competent domestic bodies, first of all – the courts, to take new decisions on the applicant’s case. These judgments shall lead to the restoration of the applicant’s Convention rights, infringed by the domestic authorities.

A lawyer, for example, can easily obtain a fresh examination of an issue of an applicant’s detention, by lodging a complaint to the European Court. The Court also can assist an applicant, by awarding him or her a compensation for damage sustained as the result of acts lying contrary to the Convention. The European Court acknowledges and supports the applicants’ right to just satisfaction.

The relevant ruling by the Court can be made together with a judgment on the merits of a case and also separately from it, at a later stage, which gives an applicant a practical plausible effect from the Court’s finding of a violation. Just satisfaction covers pecuniary and non-pecuniary damage sustained by an applicant. The amount of compensation is determined as a firm sum, indicated in a judgment.

The High Contracting Parties to the Convention took up on them an obligation to comply with this part of judgments too. As of today, all the Member States have fulfilled their obligations in the part concerning the payment of the compensation awarded by the Court (with a few exceptions). All the compensations determined by the Court in respect of the applicants were duly paid by the Respondent Governments.