Appeal to the European Court of Human Rights (ECtHR)

The European Court of Human Rights was established in 1959 as an institution of the Council of Europe in Strasbourg and, since 1998, has been a permanent court that monitors compliance with the ECHR. All member states of the Council of Europe are subject to its jurisdiction. The ECHR provides for two different forms of complaint – depending on the plaintiff’s status: the aforementioned individual application and the interstate application. The latter comes into consideration when one convention state is considering a complaint against another. However, such a complaint can also be directed against several states that have ratified the ECHR. However, complaints against third states or private individuals are excluded. The judgements of the ECHR are binding and have already prompted member states to amend laws and administrative practices to implement the case law of the ECtHR.

The individual application, which is particularly relevant in legal practice, can be filed by any natural or legal person, group of persons or non-governmental organisation that claims that one of its rights under the ECHR has been violated. Certain requirements must be met before proceedings can be initiated before the ECtHR. For example, the complainant must first have exhausted all domestic legal remedies before the complaint can be submitted. This requirement is intended to give the member state sufficient opportunity to examine and remedy the alleged violation of rights within the framework of its own judicial system. In addition, the last domestic court decision must not be more than four months old.

The standard for a judgement by the ECtHR is always the ECHR, which is why every complaint must relate to the specific violation of a right set out in the convention. The complainant must have been the direct victim of this violation of the convention and have suffered a considerable disadvantage.

Any violation of the Convention by a state action can be the subject of a complaint to the ECtHR. By ratifying the ECHR, the member states have undertaken to ensure compliance with the rights enshrined therein. This obligation applies to their own citizens and any person on the territory of the respective state. The Convention guarantees, for example, the right to a fair trial, freedom of expression, freedom of religion and the protection of private and family life. It also includes the prohibition of torture, inhumane treatment and unlawful deprivation of liberty.

Proceedings before the ECtHR are divided into an admissibility and a merits examination of the application. If the inadmissibility of an application is established from the outset, a single judge dismisses the application. Otherwise, a chamber decides on the appeal. This chamber first forwards the appeal to the government of the state concerned, giving it the opportunity to submit a written statement. In rare cases, the chamber decides to schedule a public hearing in addition to the written statements. The chamber then issues a judgement. This either becomes final after a three-month period, or the parties can request a referral to the Grand Chamber for a new hearing. The committee of the Grand Chamber then decides on the request for referral. If the application is accepted, the Grand Chamber re-examines the case and ultimately issues an unappealable judgment as the last instance.

Various factors, such as the ordering of an oral hearing, the referral of an application to the Grand Chamber and the amount of information provided to the court by the parties, can have an influence on the duration of proceedings. It is, therefore, unfortunately not possible to provide reliable information on the duration of proceedings before the ECtHR. In principle, however, the court endeavours to deal with the complaint within three years. If a case is classified as urgent, for example, due to the immediate risk of physical abuse, the complaint can also be prioritised.

If a person has filed a complaint with the ECtHR, it can initially recommend provisional measures to be taken by the state concerned until a decision can be made on the complaint. Such measures are often ordered to prevent incriminating state action. This often involves extradition, for example, where the person concerned could be at risk of torture or even death.

During the proceedings, attempts are also regularly made to bring about an amicable settlement between the parties. An amicable settlement is an agreement between the parties to end the proceedings by mutual consent without a court judgment. If the proceedings are concluded in this way, this usually means that the member state pays the complainant an appropriate amount of compensation. The court then re-examines the content of such an agreement to ensure that it has been reached in compliance with convention rights and then removes the case from its register. However, if no agreement can be reached between the parties, the court continues with the proceedings.

If the court finally rules that there has been a violation of the Convention, this judgment is binding for the member states concerned, and they are obliged to implement the decision. Following the proceedings, the court forwards the file to the Committee of Ministers of the Council of Europe. The Committee is then responsible for discussing with the states concerned how the judgment should be implemented and how violations of the Convention can be avoided in the future. If necessary, the measures to be taken may also include amendments to the national law. In addition, if a violation of the Convention is found, the court determines a sum to be paid to the affected party as fair compensation. Here, too, the Committee of Ministers of the Council of Europe is responsible for ensuring the compensation is paid to the complainant.