Preparing a Case before the European Court of Human Rights

This article provides a general overview of the European human rights system and how to bring and prepare a case before it.

WHAT IS THE EUROPEAN CONVENTION ON HUMAN RIGHTS?

The Convention for the Protection of Human Rights and Fundamental Freedoms, better known as the European Convention on Human Rights, was opened for signature in Rome on 4 November 1950 and came into force in 1953. It was the first instrument to give effect to certain of the rights stated in the Universal Declaration of Human Rights and make t

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hem binding.

States that have ratified the Convention, also known as “States Parties”, have undertaken to secure and guarantee to everyone within their jurisdiction, not only their nationals, the fundamental civil and political rights defined in the Convention.

I. RIGHTS AND FREEDOMS

The rights and freedoms secured by the Convention include among others:

A. THE RIGHT TO LIFE

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defense of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

B. THE RIGHT TO LIBERTY AND SECURITY

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

C. THE RIGHT TO A FAIR TRIAL

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defense;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

D. THE RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

E. FREEDOM OF EXPRESSION

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

F. FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

II. PROHIBITIONS

The Convention prohibits further, in particular, among others:

A. TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

B. SLAVERY AND FORCED LABOR

“1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labor.
3. For the purpose of this Article the term “forced or compulsory labor” shall not include:
(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
(b) any service of a military character or, in case of conscientious objectors in countries where they are recognized, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or wellbeing of the community;
(d) any work or service which forms part of normal civic obligations.”

C. DISCRIMINATION IN THE ENJOYMENT OF THE RIGHTS AND FREEDOMS SECURED BY THE CONVENTION

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

III. AMENDMENTS, SUPPLEMENTS AND EVOLUTION

Since its adoption in 1950, the Convention has been amended a number of times and supplemented with many rights in addition to those set forth in the original text. Protocols which add rights to the Convention are binding only on those States that have signed and ratified them. A State that has merely signed a protocol without ratifying it will not be bound by its provisions.

To date, 16 additional protocols have been adopted, securing among others the following rights and freedoms, and prohibitions:

A. THE PROTECTION OF PROPERTY – PROTOCOL 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

B. THE PROHIBITION OF COLLECTIVE EXPULSION OF ALIENS AND FREEDOM OF MOVEMENT – PROTOCOL 4

Article 2:
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 4. The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society “

Article 4:
“Collective expulsion of aliens is prohibited.”

C. GENERAL PROHIBITION OF DISCRIMINATION – PROTOCOL 12

“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”

IV. APPLICABILITY AT THE NATIONAL LEVEL

The Convention is applicable at national level. It has been incorporated into the legislation of the States Parties, which have undertaken to protect the rights defined in the Convention. Domestic courts therefore have to apply the Convention.

Otherwise, the European Court of Human Rights would find against the State in the event of complaints by individuals about failure to protect their rights.

WHAT IS THE EUROPEAN COURT OF HUMAN RIGHTS?

The European Court of Human Rights is an international court, which was set up in 1959, in Strasbourg, to examine alleged violations and ensure compliance by the States with their undertakings under the European Convention on Human Rights.

I. WHAT DOES THE EUROPEAN COURT OF HUMAN RIGHTS DO?

The Court applies the European Convention on Human Rights and ensures that States respect the rights and freedoms set out in the Convention, by examining applications, lodged by individuals or by States.
When the Court concludes that a member State has violated one or more of these rights and freedoms, the Court delivers a judgment.
Judgments finding violations are binding on the States concerned and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgments, particularly to ensure payment of the amounts awarded by the Court to the applicants in compensation for the damage they have sustained.

II. COMPOSITION OF THE EUROPEAN COURT OF HUMAN RIGHTS

The European Court consists of 47 judges, one for each State Party to the Convention. Although judges are elected in respect of a State, they hear cases as individuals and do not represent that State. They are totally independent and cannot engage in any activity that would be incompatible with their duty of independence and impartiality.

III. IMPACT OF THE COURT’S CASE-LAW ON DOMESTIC LEGISLATION AND POLICY

In almost fifty years the Court has delivered more than 10,000 judgments. Given their binding character, they have led governments to alter their legislation and administrative practice in a wide range of areas. The Court’s case-law makes the Convention a powerful living instrument for meeting new challenges and consolidating the rule of law and democracy in Europe.

HOW TO PREPARE A CASE BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS?

I. WHO CAN BRING A CASE BEFORE THE COURT?

The Convention makes a distinction between two types of application: individual applications lodged by any person, group of individuals, company or NGO having a complaint about a violation of their rights (i), and inter-State applications brought by one State against another (ii).
For individual applications, it is not required that the applicant is a national of one of States bound by the Convention. The violation the application is complaining of must simply have been committed by one of those States within its “jurisdiction”, which usually means within its territory.
Since the Court was established, almost all applications have been lodged by individuals who have brought their cases directly to the Court alleging one or more violations of the Convention.

II. WHO ARE CASES BROUGHT AGAINST?

Cases can only be brought against one or more States that have ratified the Convention. Any applications against third States or individuals, for example, will be declared inadmissible.

III. HOW ARE CASES BROUGHT BEFORE THE COURT?

Cases can be brought directly by individuals and the assistance of a lawyer is not necessary at the start of the proceedings. It is sufficient to send the Court a duly completed application form with the requisite documents.
However, the registration of an application by the Court is no guarantee that it will be admissible or successful on the merits.
The Convention system provides for “easy” access to the Court, enabling any individual to bring a case even if he or she lives in a remote region of a member State or is penniless. With this in mind, there are no fees for proceedings before the Court.

IV. THE DIFFERENT PHASES OF THE PROCEEDINGS BEFORE THE COURT

There are two main stages in the consideration of cases brought before the Court: the admissibility stage and the merits stage (i.e. the examination of the complaints). The processing of an application also goes through different phases.

A. ADMISSIBILITY STAGE
The great majority of applications lodged with the Court are declared inadmissible, which means that the Court dismisses them without even examining the merits of the case because the application does not meet all the admissibility criteria. Decisions declaring applications inadmissible are final and cannot be challenged. So if you do not want the Court to reject your application, it is important that you satisfy all the admissibility criteria.
The conditions of admissibility are the following:

1. EXHAUSTION OF DOMESTIC REMEDIES
Cases can only be brought to the Court after domestic remedies have been exhausted. In other words, individuals complaining of violations of their rights must first have taken their case through the courts of the country concerned, up to the highest possible level of jurisdiction.
The Court is intended to be subsidiary to the national systems safeguarding human rights. Therefore, the national courts should initially have the opportunity to determine questions regarding the compatibility of domestic law with the Convention.

2. SIX-MONTH TIME-LIMIT
Applications must be lodged with the Court within six months following the last judicial decision in the case, which will usually be a judgment by the highest court in the country concerned.

3. A VIOLATION OF ONE OR MORE RIGHTS DEFINED IN THE EUROPEAN CONVENTION
An applicant’s allegations must concern one or more of the rights defined in the Convention. The Court cannot examine complaints concerning violations of any other rights.
Also, the application cannot be manifestly ill-founded, or cannot be an abuse of the right of individual application.

4. PERSONAL AND DIRECT VICTIM WHO HAS SUFFERED A SIGNIFICANT DISADVANTAGE
The applicant must be, personally and directly, a victim of a violation of the Convention, and must have suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.

5. NOT ANONYMOUS AND NOT ALREADY EXAMINED BY THE COURT
The Court can only deal with an application that is not anonymous and that is not 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.

B. JUDICIAL FORMATIONS
Once the Court is in possession of all the information it needs to examine your case, your application will be allocated to one of the Court’s judicial formations, depending on the type of case: a single judge, a Committee or a Chamber.
If your application is clearly inadmissible because it does not meet all the required admissibility criteria, it will be dealt with by a single judge. The inadmissibility decision given by that judge is final. It is not possible to challenge the inadmissibility decision or request any further information about it. The Court will close the case and the file will be destroyed at a later date.

If your case is considered to be a repetitive case, which raises an issue on which the Court has already ruled in a number of cases concerning the State in question, it will be handled by a Committee of 3 judges.
If your case is not considered to be a repetitive case, it will be examined by a Chamber of 7 judges. The Chamber may still declare the case inadmissible and, if it does, that decision will be final, but if it considers the case admissible it will examine the merits of your complaint. Before doing that, however, it will first communicate the application to the Government concerned, to inform them of the existence of the complaint and allow them to submit observations on the matter in dispute. Those observations are then sent to you, to give you a chance to reply.

C. MERITS STAGE
If your application or one of your complaints is declared admissible, the Court will encourage the parties (you and the State concerned) to reach a friendly settlement.
A friendly settlement is an agreement between the parties to put an end to proceedings initiated by an application. When the parties concerned agree to settle their dispute in this way, the outcome is usually that the State pays the applicant a sum of money. After examining the terms of the friendly settlement, and unless it considers that respect for human rights requires continuation, the Court will strike out the application.
If no settlement is reached, the Court will consider the application “on the merits”, meaning that it will determine whether or not there has been a violation of the Convention.

V. JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS

A. BINDING ON STATES
Judgments finding violations are binding on the States concerned and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgments, particularly to ensure payment of the amounts awarded by the Court to the applicants in compensation for the damage they have sustained.

B. APPEAL AGAINST JUDGMENTS
Inadmissibility decisions, and also judgments delivered by Committees or the Grand Chamber, are final and cannot be appealed against.
However, the parties have three months following the delivery of a Chamber judgment to request referral of the case to the Grand Chamber for fresh consideration.
Requests for referral to the Grand Chamber are examined by a panel of judges which decides whether or not referral is appropriate.

C. ENFORCEMENT OF JUDGMENTS
When the Court delivers a judgment finding a violation, the Court transmits the file to the Committee of Ministers of the Council of Europe, which confers with the country concerned and the department responsible for the execution of judgments to decide how the judgment should be executed and how to prevent similar violations of the Convention in the future.
This will result in general measures, especially amendments to legislation, and individual measures where necessary.

HOW TO LODGE AN APPLICATION BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS?

According to article 34 of the European Convention on Human Rights, individual applications can be lodged with the European Court of Human Rights:

“The Court may receive applications from any person, nongovernmental organization 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.”

Rule 47 of the Rules of Court set out the conditions for applying to the Court and for lodging a complete and valid application:

“1. An application under Article 34 of the Convention shall be made on the application form provided by the Registry, unless the Court decides otherwise. It shall contain all of the information requested in the relevant parts of the application form and set out
(a) the name, date of birth, nationality and address of the applicant and, where the applicant is a legal person, the full name, date of incorporation or registration, the official registration number (if any) and the official address;
(b) the name, address, telephone and fax numbers and e-mail address of the representative, if any;
(c) where the applicant is represented, the dated and original signature of the applicant on the authority section of the application form; the original signature of the representative showing that he or she has agreed to act for the applicant must also be on the authority section of the application form;
(d) the name of the Contracting Party or Parties against which the application is made;
(e) a concise and legible statement of the facts;
(f) a concise and legible statement of the alleged violation(s) of the Convention and the relevant arguments; and
(g) a concise and legible statement confirming the applicant’s compliance with the admissibility criteria laid down in Article 35 § 1 of the Convention.
2. (a) All of the information referred to in paragraph 1 (e) to (g) above that is set out in the relevant part of the application form should be sufficient to enable the Court to determine the nature and scope of the application without recourse to any other document.
(b) The applicant may however supplement the information by appending to the application form further details on the facts, alleged violations of the Convention and the relevant arguments. Such information shall not exceed 20 pages.
3.1. The application form shall be signed by the applicant or the applicant’s representative and shall be accompanied by
(a) copies of documents relating to the decisions or measures complained of, judicial or otherwise;
(b) copies of documents and decisions showing that the applicant has complied with the exhaustion of domestic remedies requirement and the time-limit contained in Article 35 § 1 of the Convention;
(c) where appropriate, copies of documents relating to any other procedure of international investigation or settlement;
(d) where the applicant is a legal person as referred to in Rule 47 § 1 (a), a document or documents showing that the individual who lodged the application has the standing or authority to represent the applicant.
3.2. Documents submitted in support of the application shall be listed in order by date, numbered consecutively and be identified clearly.
4. Applicants who do not wish their identity to be disclosed to the public shall so indicate and shall submit a statement of the reasons justifying such a departure from the normal rule of public access to information in proceedings before the Court. The Court may authorise anonymity or grant it of its own motion.
5.1. Failure to comply with the requirements set out in paragraphs 1 to 3 of this Rule will result in the application not being examined by the Court, unless
(a) the applicant has provided an adequate explanation for the failure to comply; (b) the application concerns a request for an interim measure;
(c) the Court otherwise directs of its own motion or at the request of an applicant. 5.2. The Court may in any case request an applicant to provide information or documents in any form or manner which may be appropriate within a fixed time-limit.
6. (a) The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall be the date on which an application form satisfying the requirements of this Rule is sent to the Court. The date of dispatch shall be the date of the postmark.
(b) Where it finds it justified, the Court may nevertheless decide that a different date shall be considered to be the date of introduction.
7. Applicants shall keep the Court informed of any change of address and of all circumstances relevant to the application.”

I. SUBMISSION OF AN APPLICATION FORM

In order to lodge an application, the required application form can be found on the website of the European Court of Human Rights. This form should be downloaded, completed, printed out and sent by post, together with the necessary documents, to the following address:

The Registrar
European Court of Human Rights
Council of Europe
F-67075 Strasbourg Cedex

If you decide to apply to the Court, please ensure that your application complies with Rule 47 of the Rules of Court, which sets out the information and documents that must be provided.

Failure to provide any of the information or documents required by Rule 47 §§ 1 and 2 will result in the complaints not being examined by the Court. It is imperative that all fields in the application form are filled in.

The applicant or the designated representative must sign the application form. If represented, both the applicant and the representative must sign the authority section of the application form. Neither the application form nor the authority section can be signed per procurationem (p.p.).

II. FORM AND CONTENT OF THE APPLICATION FORM

A. GENERAL REQUIREMENTS
The submissions in the application form concerning the facts, complaints and compliance with the requirements of exhaustion of domestic remedies and the time-limit set out in Article 35 § 1 of the Convention must respect the conditions set out in Rule 47 of the Rules of Court.
Any additional submissions, presented as a separate document, must not exceed 20 pages (see Rule 47 § 2 (b)) and should:
a) be in an A4 page format with a margin of not less than 3.5 cm;
b) be wholly legible and, if typed, the text should be at least 12 pt in the body of the document and 10 pt in the footnotes, with one and a half line spacing;
c) have all numbers expressed as figures;
d) have pages numbered consecutively;
e) be divided into numbered paragraphs;
f) be divided into headings corresponding to "Facts", "Complaints or statements of violations" and "Information about the exhaustion of domestic remedies and compliance with the time-limit set out in Article 35 § 1"
All applicable fields in the application form must be filled in by use of words. Avoid using symbols, signs or abbreviations. Explain in words, even if the answer is negative or the question does not appear relevant.
The applicant must set out the facts of the case, his or her complaints and the explanations as to compliance with the admissibility criteria in the space provided in the application form.
The information should be enough to enable the Court to determine the nature and scope of the application and, as such, the completed application form alone should suffice. It is not acceptable merely to annex a statement of facts, complaints and compliance to the application form, with or without the mention “see attached”. Filling in this information on the application form is to assist the Court in speedily assessing and allocating incoming cases.
Additional explanations may be appended, if necessary, in a separate document up to a maximum of 20 pages: these only develop and cannot replace the statement of facts, complaints and compliance with the admissibility criteria that must be on the application form itself. An application form will not be regarded as compliant with Rule 47 if this information is not found on the form itself.
An applicant does not have to have legal representation at the introductory stage of proceedings. If he or she does instruct a lawyer, the authority section on the application form must be filled in. Both the applicant and the representative must sign the authority section.
A separate power of attorney is not acceptable at this stage as the Court requires all essential information to be contained in its application form.
If it is claimed that it is not possible to obtain the applicant’s signature on the authority section in the application form due to insurmountable practical difficulties, this should be explained to the Court with any substantiating elements.
The requirement of completing the application form speedily within the six-month time-limit will not be accepted as an adequate explanation.

B. SPECIFIC REQUIREMENTS FOR LEGAL PERSONS
A legal person (which includes a company, non-governmental organization or association) that applies to the Court must do so through a representative of that legal person who is identified in the relevant section of the application form and who provides contact details and explains his or her capacity or relationship with the legal person.
Proof must be supplied with the application form that the representative has authority to act on behalf of the legal person, for example an extract from the Chamber of Commerce register or minutes of the governing body.
The representative of the legal person is distinct from the lawyer authorized to act before the Court as legal representative. It may be that a legal person’s representative is also a lawyer or legal officer and has the capacity to act additionally as legal representative.
Both parts of the application form concerning representation must still be filled in, and requisite documentary proof provided of authority to represent the legal person must be attached.

III. SUBMISSION OF ADDITIONAL REQUIRED DOCUMENTS

An application form must be accompanied by the relevant documents
(a) relating to the decisions or measures complained of;
(b) showing that the applicant has complied with the exhaustion of available domestic remedies and the time-limit contained in Article 35 § 1 of the Convention;
(c) showing, where applicable, information regarding other international proceedings. If the applicant is unable to provide a copy of any of these documents, he or she must provide an adequate explanation: merely stating that he or she encountered difficulties (in obtaining the documents) will not suffice if it can be reasonably expected for the explanation to be supported by documentary evidence, such as proof of indigence, a refusal of an authority to furnish a decision or otherwise demonstrating the applicant’s inability to access the document. If the explanation is not forthcoming or adequate, the application will not be allocated to a judicial formation.
Where documents are provided by electronic means, they must be in the format required. They must also be arranged and numbered in accordance with the list of documents on the application form.
An applicant who has already had a previous application or applications decided by the Court or who has an application or applications pending before the Court must inform the Registry accordingly, stating the application number or numbers.
Where an applicant does not wish to have his or her identity disclosed, he or she should state the reasons for his or her request in writing, pursuant to Rule 47 § 4.
The applicant should also state whether, in the event of anonymity being authorized by the President of the Chamber, he or she wishes to be designated by his or her initials or by a single letter (e.g. “X”, “Y” or “Z”).

IV. FAILURE TO COMPLY WITH REQUESTS FOR INFORMATION OR DIRECTIONS

Failure, within the specified time-limit, to provide further information or documents at the Court’s request or to comply with the Court’s directions as to the form or manner of the lodging of an application – including grouped applications or applications by multiple applicants – may result, depending on the stage reached in the proceedings, in the complaint(s) not being examined by the Court or the application(s) being declared inadmissible or struck out of the Court’s list of cases.

HOW TO REQUEST INTERIM MEASURES OF THE EUROPEAN COURT OF HUMAN RIGHTS?

When the Court receives an application, it may decide that a State should take certain measures provisionally while it continues its examination of the case.
This usually consists of requesting a State to refrain from doing something, such as not returning individuals to countries where it is alleged that they would face death or torture.

I. WHAT ARE INTERIM MEASURES?

The Court may, under Rule 39 of its Rules of Court, indicate interim measures to any State party to the Convention. Interim measures are urgent measures which, in accordance with the established practice of the Court, apply only where there is an imminent risk of irreparable damage.

Interim measures are applied only in limited situations. The most typical cases are ones in which there are fears of

- a threat to life (situation falling under Article 2 of the Convention); or
- ill-treatment prohibited by Article 3 of the Convention (prohibition of torture and inhuman or degrading treatment)

In highly exceptional cases, they can also be applied in respect of certain requests relating to the right to respect for private and family life (Article 8 of the Convention).

II. HOW AND WHEN TO REQUEST INTERIM MEASURES?

Every request is examined individually and the procedure is a written one.

Every request for interim measures is dealt with as a matter of priority, unless the request is manifestly intended as a delaying tactic.

Applicants are informed of the decisions of the Court regarding requests for interim measures by letter (sent by fax and by post).

III. NO APPEAL IN CASE OF A REFUSAL

No appeal lies against decisions refusing application of Rule 39.

IV. DURATION AND LIFTING OF ORDERS UNDER RULE 39

Interim measures may be indicated for the duration of the proceedings before the Court or for a more limited period of time.

An order under Rule 39 may be lifted at any time by a decision of the Court.
In particular, as an order under Rule 39 is linked to the proceedings before the Court the measure may be lifted if the application is not maintained.

V. DEPORTATION OF A PERSON TO A MEMBER STATE

Where a person whose request for an interim measure has been refused is deported to another member State, he or she can, if necessary, introduce a fresh request against that State under Rule 39 of the Rules of Court or an application under Article 34 of the Convention.

VI. EFFECTIVENESS OF INTERIM MEASURES

Whilst States almost always follow the Court’s indications concerning interim measures, it is not unknown for some of them to fail to act on the Court’s request. Those States are likely to be found by the Court to have failed to fulfil their obligations under Article 34 (right of individual application).

HOW TO APPEAL A JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS BEFORE THE GRAND CHAMBER?

Article 43 of the European Convention on Human Rights:

“1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber.
2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance.
3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.”
These conditions should be applied “in a strict sense”, which suggests that, in principle, a request for referral should be granted only when the case is, at least in some respects, exceptional. This interpretation is confirmed by the first paragraph of Article 43 of the Convention, which provides that “any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber”.

I. TIME-LIMIT

Following the delivery of a Chamber judgment, the parties have three months to request referral of the case to the Grand Chamber for fresh consideration.

II. EXAMINATION BY A PANEL OF JUDGES

Requests for referral to the Grand Chamber are examined by a panel of judges which decides whether or not referral is appropriate.
The members of the Panel consider whether the case warrants referral to the Grand Chamber on the grounds that it is exceptional as indicated in the text of Article 43.
They do not seek to impose their views on the merits of the case, nor do they vote to refer a case because they disagree with the Chamber’s reasoning or would themselves have voted differently.
The members of the Panel thus do not assess the merits of the case but, as in national leave-to-appeal procedures, express views as to whether the case should be referred to the Grand Chamber because it meets the statutory criteria set out above.
Disagreement on issues of fact, on the inferences to be drawn from the facts and/or, for instance, on the point at which, in the particular circumstances of the case, the fair balance between conflicting rights should have been struck does not necessarily mean that the conditions for referral are met.
Indeed, the Grand Chamber should not be seen as an appeal court whose function is to correct alleged errors of fact or of assessment of the various features of each individual case. The intervention of the Grand Chamber is instead limited to cases which, by their nature and by the nature of their legal, social and political implications, are capable of having a serious impact on the extent and scope of the protection afforded by the Convention.
The panel shall accept the request if the case raises a serious question affecting the interpretation (A) or application (B) of the Convention or the Protocols thereto or a serious issue of general importance (C).

A. A SERIOUS QUESTION AFFECTING THE INTERPRETATION OF THE CONVENTION OR THE PROTOCOLS THERETO
A serious question affecting the interpretation of the Convention is raised when a question of importance not yet decided by the Court is at stake, or when the decision is of importance for future cases and for the development of the Court’s case-law.
This may also be the case when the impugned judgment is not consistent with a previous judgment of the Court.

B. A SERIOUS QUESTION AFFECTING THE APPLICATION OF THE CONVENTION OR THE PROTOCOLS THERETO
A serious question affecting the application of the Convention is raised when a judgment necessitates a substantial change to national law or administrative practice.
This may happen in cases in which the Court has initiated the “pilot-judgment procedure” in accordance with Rule 61 of the Rules of Court and has therefore considered that the facts of the application disclosed the existence, in the Contracting State concerned, of a “structural or systemic problem or other similar dysfunction”.
However, the mere fact that a Chamber judgment has been adopted following the pilot-judgment procedure does not, in itself, mean that the case must be referred to the Grand Chamber.

C. A SERIOUS ISSUE OF GENERAL IMPORTANCE
A serious issue of general importance could involve a substantial political issue or an important issue of policy.

D. NOT THE MERE FACT THAT THE CASE IS FACTUALLY COMPLEX, POLITICALLY DELICATE OR HAS GIVEN RISE TO DISSENTING OPINIONS
The mere fact that the case is factually complex, politically delicate or has given rise to dissenting opinions does not, as such, justify its referral to the Grand Chamber.
For example, the Panel systematically rejects requests which challenge the factual findings of the Chamber in cases concerning prison conditions or other issues under Articles 2 and 3 of the Convention where the case-law is well established.
However, under certain circumstances, these same facts may be factors militating in favor of the existence of one or more of the grounds for referral set forth in Article 43 § 2 of the Convention (in other words, when the dissenting opinions are, in the Panel’s view, well-reasoned on key Convention issues and/or point out inconsistencies in the case-law).

III. CASES IN WHICH THE REFERRAL REQUEST MAY BE GRANTED

Cases that will be sent to the Grand Chamber are likely to belong to the following categories:

A. CASES AFFECTING CASE-LAW CONSISTENCY
The fundamental role of the Panel is to ensure that Chamber judgments are consistent with the established case-law of the Court.
When a Chamber judgment significantly departs from the previous case-law, the Panel exercises the function conferred on it by the Convention by asking the Grand Chamber to settle the interpretation to be pursued and to determine the dispute.

B. CASES WHICH MAY BE SUITABLE FOR DEVELOPMENT OF THE CASE-LAW
The Panel may also decide to refer to the Grand Chamber cases which do not disclose, as such, a (potential) inconsistency with the previous case-law, but which present an opportunity for development of the case-law where this is considered appropriate.

C. CASES WHICH ARE SUITABLE FOR CLARIFYING THE PRINCIPLES SET FORTH IN THE EXISTING CASE-LAW
In some cases referred to the Grand Chamber, the Chamber judgment, without being per se innovative, touched on an area in which it was felt that clarification of the relevant basic principles was needed.

D. CASES IN WHICH THE GRAND CHAMBER MAY BE CALLED UPON TO RE-EXAMINE A DEVELOPMENT IN THE CASE-LAW ENDORSED BY THE CHAMBER
The Chamber may adopt a judgment which, without explicitly conflicting with previous authorities, may be seen as a significant development of the case-law principles.
In these cases, the Panel may feel that confirmation (or rejection) of such a development is needed from the Grand Chamber.
This is notably the case when the Chamber has found a violation of the Convention in circumstances which, in the past, had not systematically led to such a conclusion.

E. CASES CONCERNING “NEW” ISSUES
A reason in favor of referral might be that the Chamber judgment touches on a (relatively new) field of law which has not previously been examined by the Court, and/or which is socially and politically sensitive.
In these cases it is frequently felt that guidance is needed from the Court’s enlarged formation on issues which, on account of their original character and the debate they generate in society and the media, should be subjected to the most careful scrutiny.
Thus, the Grand Chamber may be given the opportunity to adapt the existing case-law to new situations and/or to develop new principles, having regard to the possible implications for future, similar cases.

F. CASES RAISING A “SERIOUS ISSUE OF GENERAL IMPORTANCE”
A sub-group of the category of cases mentioned under (E) is that of cases which, without addressing a “new” field of law, raise an important issue at European or global level.

G. “HIGH-PROFILE” CASES
Some cases are referred to the Grand Chamber both because of the complexity of the legal issues they raise and because of the serious implications for the State concerned.
The latter may stem from the identity of the applicant or from the fact that the application concerns matters which are at the center of a sensitive national, European or global debate.
These cases relate to historical, geopolitical or religious issues. They may also concern a specific incident or crime which has attracted exceptional media attention.

IV. REQUESTS THAT ARE IN PRINCIPLE REJECTED

The Panel has developed the practice of systematically rejecting referral requests which challenge:

A. DECISIONS BY THE CHAMBER TO DECLARE A COMPLAINT INADMISSIBLE
Applicants should be reminded that according to the Court’s case-law, the content and scope of the case referred to the Grand Chamber are delimited by the Chamber’s decision on admissibility.
This means that the Grand Chamber may examine the case in its entirety in so far as it has been declared admissible. It cannot, however, examine those parts of the application which have been declared inadmissible by the Chamber.

B. AWARDS MADE BY THE CHAMBER UNDER ARTICLE 41 OF THE CONVENTION
The award at issue constitutes the application of Article 41 to the nature of the violation found and may be seen as a factual assessment.
Moreover, in many cases the Chamber decides the amount of just satisfaction on an “equitable basis”, and such an assessment does not, by its very nature, lend itself to a review by the Grand Chamber.

C. THE CHAMBER’S ASSESSMENT OF THE FACTS
The Grand Chamber should not be seen as an appeal court with the function of correcting errors of fact allegedly made by the Chamber.
If that were the case, there would be no need for filtering by the Panel, and the parties would have direct access to the Grand Chamber whenever the establishment of a fact by the Chamber ran counter to their interests.

D. THE APPLICATION OF WELL-ESTABLISHED CASE-LAW
Unless the Panel considers that it is time for development of the Court’s case-law, judgments entailing “normal” application of well-established case-law are in principle not referred to the Grand Chamber.

V. DECISION OF THE CASE BY MEANS OF JUDGMENT

If the Panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.

ABOUT THE AUTHOR: Chihaoui Zouhaier
Lawyer Chihaoui is the founder of the law firm "Just Rights", and is specialized in petitioning before the European Court of Human Rights and in particular in drafting applications to the European Court, submitting requests for referral to the Grand Chamber, and in litigating before the Grand Chamber.