Taking a case to the European Court of human rights

(Some practical hints)

The first and most important point is the six month time limit. A complaint must be brought to the Court within six months of the final domestic decision. This can be done by a simple letter — but it must include minimal information.

Legal advisers should be reminded of the recent case of Khan v. UK — a family immigration case — where the lawyers failed to set out in the introductory letter (which they posted on the last day of the six month limit) even the minimum necessary information to stop time running and the whole application was consequently declared inadmissible for being out of time.

The postmark on the letter is taken as the date on which the application was submitted so in theory you can post an application on the last day. Personally, I never have the courage to do that! and always fax as well.

Urgency and speed may be key components.

I. Making the application

1. The introductory letter

It can be sent by mail or by fax — the fax number is: 00 333 88 41 27 92.

Write it on the wall somewhere in your office — so that it is there if you ever need it! It is also worth finding out whilst you are in Strasbourg who in the Secretariat deals with the cases coming from your country and getting to know that person if you don't already. Get their direct telephone number and use it. The members of the Secretariat are, in my experience, informed, patient and helpful, and — whilst obviously carrying out their tasks impartially — do not display the antagonism towards applicants which practitioners may occasionally have encountered from some of the officials of their national administrations.

If you are submitting the case as a matter of urgency, you do not need to use the official forms.

In fact even if you are not submitting an urgent case you may be well advised not to use them so that you can complete them in a more leisurely fashion later. Also the Secretariat may helpfully draw your attention in their reply to some aspect of your case which you will then obviously wish to address at greater length when you complete the forms.The introductory letter need only set out briefly the following details:

The facts of the clients' case — brief details of what has occurred or what they fear will occur in the future and the basis of those facts or fears. A summary of the domestic legal proceedings to date particularly including details of the final decision, and any positive findings of fact or credibility. The introductory letter can be provisional — that is it can be introduced whilst you are still coming to the end of the process of exhausting domestic remedies if it is clear to you that they cannot succeed. Details of the Convention articles you think have been violated, or will be violated if the action goes ahead, with a one line explanation for each.

You do not at this stage have to introduce any complex legal argument or a detailed analysis of how the Strasbourg case-law applies to your situation. This whole letter can be only two or three pages long, so long as it has the above elements. You can send it in your own language. If it is urgent — write URGENT on it in English or French.

The Secretariat will acknowledge your application in about a month and send you the forms which you must complete within six weeks of them being sent. Unlike the six month deadline which is absolute, you can ask for a short extension of this time limit if it is necessary in order to assemble documentation or for some other pressing reason, (sometimes, due to vagaries of the postal system the forms only arrive shortly before the six weeks is up!)

2. The forms

Completing the forms will involve elaborating on the information given in the introductory letter. You do not have to write all the details of the facts of the case or your detailed legal argument about the alleged violations on the paper forms themselves — just put "see attached sheet" in the relevant section and write them on your ordinary word processor identifying the section.

a) The Statement of Facts

The Statement of Facts should set out the facts of the case in full, and be supported

by any relevant independent corroborative information that you have. If this is not practice you already use automatically when drafting documents, it is useful to number the paragraphs for easy reference in later exchanges. Where the facts are disputed — and particularly where there has been no opportunity to have them properly examined by a national court, you will have to provide evidence to support your version of the facts. Though the Commission will be reluctant to disturb any findings made by a national court, under Article 28 they are the body charged with establishing the facts.

b) The Statement of Alleged Violations

The Statement of alleged violations should set out ALL the articles you think may have

been violated. You can always discontinue your complaint under a particular article, but it is very difficult to add another violation at a later stage.

Ahmed v. Austria was a case that we were only called in to advise on at the last

moment before the Court. The case concerned a threatened expulsion of a recognised refugee to Somalia. Quite understandably in the urgency of bringing the application, and the request for the Rule 36 indication, no one had thought to raise at the beginning the legality of the applicant's detention. By the time the case came to the Court it was too late. The Commission will only examine on the merits those complaints that it has declared admissible.

If your complaint is about detention don't forget the question of compensation under

Article 5(5). In the recent case of Chahal v. UK — again understandably — Article 5(5) was not pleaded in Chahal. The detention was found by the Court to have violated Article 5(4) of the Convention. It thus gave rise to an automatic right to compensation under 5(5). The European Court — without explaining why, decided not to award any compensation itself for the unlawful detention. No compensation is payable in English law for the detention, but the applicants have now had to initiate a whole new set of proceedings for the obligatory compensation to be granted.

If you are alleging a violation of Article 3, you should think about whether the Court

might feel that the treatment to which your client would be exposed would not reach the

threshold of severity under Article 3, so plead the ^1tmoral and physical integrity" aspects of Article 8 as well.

In some cases you may be unsure as to which articles you should plead. You can

always ask the Secretariat for advice. But if this is not a practical option put in everything you can think of. You can always withdraw them at a later stage, and sometimes arguments that appear very weak may actually succeed. In a recent case called Mar v. UK which concerned expulsion to face possibly death without the benefit of fair trial, we were unsure as to whether we would argue Article 6 in our complaint. We put it in anyway — somewhat timorously as there was nothing — except the little hints given in the Court's judgment in Drozd and Janousek v. France and Spain — that we could rely on to support the complaint. But the complaint under Article 6 was declared admissible and became central to the case. It worked! and a friendly settlement is now being negotiated.

When appropriate, it is always worth reminding of the relevance of Article 60 of the Convention which states:

"Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party."

This means that the relevant Convention provisions cannot be applied in a way which is inconsistent with the Government's obligations under other international instruments — such as the International Covenant on Civil and Political Rights, the UN Torture Convention, the Convention of the Rights of the Child to give but a few examples — whose jurisprudence may be relevant to the decision — for example where the national authorities have applied a test which was not consistent with the General Comments or jurisprudence of the UN Human Rights Committee or the Torture Committee.

If you are alleging breaches of all these articles — and have had to come to Strasbourg to get redress, it may well be that there is something wrong with the national remedies, so don't forget to plead Article 13. Remember that even if you lose on the facts or law on the substantive articles you may still be successful under Article 13 if your alleged violations were at least arguable. It is important to remember the close relationship between Article 6 and Article 13. If you have been unable to get your case before the national courts you should think carefully about which of these to plead — and look at both.

As with the statement of facts, in the section on violations — number the

paragraphs for easier future reference and divide the argument into sections, article by article.

Always remind the Court of anything said in its own jurisprudence, that may be

helpful to your case. The Information and Documentation Centres on the Council of Europe in each country should have collections of case-law as well as reference books.

This is obvious to any lawyer coming from the Anglo Saxon tradition but less

obvious to those who come from legal systems which do not depend on the doctrine of precedent. The Court's method of operating has come over the years much closer to resembling the way in which Anglo-Saxon tribunals operate and has come to rely very heavily on following its own previously decided cases.

Don't forget that Strasbourg is an international tribunal which will adjudicate on

disputes about Convention rights by applying recognised sources of international law, which include the writings of notable academic scholars.

Your completed applications will now probably be 60-80 pages long rather than

the two page letter of introduction. Always add a one page summary of your arguments, indicating the paragraphs of the text which elaborate on each point.

It is essential to enclose the final judicial decision and any relevant earlier ones, to

attach any independent documentation which supports your allegations.

But you do not at this stage need to send everything you have got. Wait for the

Government's Observations to see which points they are challenging.

c) Object of the applications

This is sometimes the trickiest bit of the form to complete. Does you complaint

raise issues which might require a change in the domestic law or procedure —and — very importantly — this is the time to ask for compensation for the violation (though not to specify the amount) and to ask for the clients full legal costs to be paid.

d) Statement concerning other international proceedings

You cannot take a complaint to Strasbourg if you are also taking it to the UN

Human Rights Committee or the UN Torture Committee.

Don't forget to sign the form and to get the client to sign a form of authority to act.

This is also the time to decide whether it would be prudent to keep the clients identity concealed from the general public.

Finally don't forget that once you have submitted the application you are bound by

the Court^ts rules of confidentiality. You can tell others (and the press) that the application has been submitted to Strasbourg but you should not be discussing the content of your complaint from now on — nor of course may you discuss the content of the Government's Observations when you receive them and if you have a hearing at admissibility stage — you may not repeat the discussion which took place at the hearing.

You are under no obligation whatever to inform your national authorities that you

have taken a case against them to Strasbourg, though you may find it helpful to do so. Knowing that their decisions are about to be examined by an international tribunal has sometimes been very effective in leading national authorities to re-consider their decisions.

You may find it tactically useful to say nothing to the Government and to wait for

the Court to communicate the case to them.

3. Next Steps

Your application is now sent, so what happens next?

You may have new materials or argument which come to light twelve or fourteen or twenty months after you have put the application in, when you had almost forgotten that you had lodged it. It is very frustrating if you are in the process of drafting a letter to the Commission setting out all the new information in the appropriate way — only to receive a letter before you have finished telling you that the application has already been considered and rejected! Your additional information will rarely be sufficient to have the case re-opened, but had you known that it was going to be examined that week you would of course have notified them that new information was on its way. Once the case has been rejected in the way it can only be re-opened if there are new and compelling facts which would change the decision. It cannot be re-opened to consider new and compelling arguments. For this reason as well as the other already mentioned it is important to put in all the violations that might be arguable at the beginning, and to back them up with supporting documentation and legal argument. The Commission has been known to reject cases by making assumptions that the applicants could easily have rebutted had they been aware of them.

4. Communicated Cases

If you are very lucky, the Commission may decide to "communicate' the complaint

to the Government. If you are told that this has occurred do not assume that this is just a routine part of the procedure. It means you have passed the first examination!!!

The government will — some months later — submit their "observations" and they will be sent to you for comment. It is normally fairly safe to assume that if they are not arguing a point in their observations they are conceding it — but be careful; because they may just have overlooked it, and may come back to it at a later stage. The Government’s Observations are very important. The quality of the arguments they contain varies enormously from country to country as well as from case to case.

You will then have the opportunity to submit your observations on their observations. These are absolutely crucial. You need to deal with every point they make paragraph by paragraph₁ but this is also an opportunity to add additional materials — facts independent reports or legal argument — to support your case. Make sure that you have read the full text of every decision of the Commission or Court which the Government has cited before replying.

If you don't have copies of the decisions cited or access to a good library that has

them — ask the Secretariat to send them to you. The Secretariat are very helpful and will sometimes send relevant recent unpublished decisions without being asked!

Once a case has been "communicated" you can ask for legal aid. This is

awarded retrospectively and covers all your work to date. If the case is not communicated to the Government you cannot be awarded legal aid.

But the legal aid bears no relation to the time or cost of submitting the application.

The legal aid award for preparation of an application is 1950 FF. Preparation of the

application will probably have taken you about 80 - 90 hours lawyers’ time. So the rate is about £ 4 an hour! Whilst this sum is obviously going to be worth more in some countries than in others, it is still a very low rate.

However it does pay your expenses — travel and accommodation for the applicant

and two lawyers — if you have to come to Strasbourg for an oral hearing. The next stage varies. Your claim may be simply rejected. This is the end of the case.

The Government may ask to submit further observations on your observations, or

they indicate that they would like to have an oral hearing before admissibility is decided. The UK Government for example always wants an oral hearing if it thinks there is a chance the case might be declared admissible. The Austrian Government on the other hand almost never asks for one at this stage.

5. Oral hearings

If you have to go to an oral hearing you are already very far along the road towards

success. Most cases never get that far. If this is your first case before the Court you may wish to ask for some help from some of the individual Western European lawyers who are experienced in litigating in Strasbourg. You may, if you wish, to submit a further written brief before the hearing — or you may want to save new or important additional points to confront the Government during the hearing — the usual lawyers' skills apply!!!

You will need to prepare in advance a 25 minutes written speech for the hearing. It

is worth spending a two or three days writing and re-writing this. 25 minutes is very short and every word counts.

Travel out at least the day before the hearing. If you can, take a lap-top computer

and portable printer (not forgetting any necessary electrical adaptors) with you to Strasbourg so that you can keep polishing your speech when you are there before you give it to the interpreters.

It is in your interest to let them have it the night before the hearing at the

latest.If you speak in English or French, half the members of the commission will be hearing you in translation. If you speak in your own language everyone except your own commission member and possible one or two others who know your language will be hearing you in translation. You must let the commission know well in advance if you would like to speak in a language other than English or French.

The interpreters' job is much easier if they have had a chance to read your speech

overnight and to think about any lines which are going to pose difficulties. Try to avoid flowery language or idiomatic phrases which are difficult to translate. British lawyers cause difficulties by using metaphors from their national game — cricket — which no-one understands unless they play the game!

Do listen to the advice about not going too fast. People who are not used to

speaking with simultaneous interpretation often do not appreciate how fast they speak and how difficult this makes the interpreter's job. It is in your interest that their interpretation is complete and accurate.

Government and applicant each make their speeches, then the commission

members ask questions. If you have someone on your team who can listen to the French or English translations through the headphones ask them to do so. Even the best interpreters — and the ones here are the best! — can mishear something or — more frequently — the speaker will be going too fast to enable them to do their job properly. So it is important that someone on your team has heard and noticed if your best point didn't get translated or was mistranslated.

This is because what happens next is that the Members of the Commission ask

questions. You then adjourn for 15-20 minutes to prepare answers. This is the shortest 20 minutes in European Legal procedure!!! They will always ask something which is very relevant but that it had not occurred to you to be prepared for. You then have to think very hard and fast and hope that you brought the answer with you in one of the files. If you don't know, just say so.

They occasionally ask something which is completely irrelevant (or — if it may be

said —that indicates that they are not fully familiar with all the carefully written papers in front of them) —but you still have to spend precious time replying. If the answer is in your written pleadings you may just want to refer them to the relevant document and paragraph number. You have only 15 minutes when you go back to the hearing to answer all the questions — but this is also your chance to make some additional points or to repeat slowly something that got lost in the interpretation in the first part of the hearing.

Normally you all then go away. If the hearing has been in the morning you go off to

lunch and can either come back to the Human Rights building to be told the result by a member of the Secretariat, or you can telephone — usually at 3 — to know if your case has been declared admissible or not. If the hearing is in the afternoon you may not be told until the following morning — by which time you may be back in your own country.

If the case is declared inadmissible — and you get the decision the same day —

that is the end of that, but in your disappointment don't forget to edit the press release —which has to be agreed between you the Government and the Secretariat before it goes out — to make sure that it accurately reflects what has transpired.

6. Friendly Settlement

If the case is declared admissible, the Government may offer a friendly settlement.

Whether or not you accept it will depend on a variety of factors — and of course the

most important of these is your client's wishes. Sometimes the client wants to settle even though an important issue of principle is at stake, sometimes the client doesn't want to settle for the same reason.

Always remember that if you refuse a reasonable settlement offer, you will never

be awarded by the Court as much by way of compensation as the Government will offer you in order to stop the case going any further.