ECHR Complaint Admission

Admissibility Criteria

The admissibility criteria are governed by Articles 34 and 35 of the Convention and influenced by case law. There is no jurisdiction to review laws or practices in the abstract. There must be a violation of a Convention provision.

The requirements for admissibility are

• violation of a Convention right
• domestic remedies exhausted
• a state respondent
• application compatible with the Convention.

The application will not be admissible if it is manifestly ill-founded or if it is an abuse of the right of petition or incompatible with the provisions of the Convention and protocols. The case may also be declared inadmissible if the applicant does not serve a significant disadvantage unless respect for human rights as defined requires an examination of the application on the merits and provided that no case may be rejected which has not been duly considered.

Complainant

The application must be brought by a person, a nongovernmental organisation or a group of individuals claiming to be the victim of the violation by one of the high contracting parties (States) of the rights in the Convention or the Protocols.

Applications may not be brought by state entities. An application may be brought by a natural person or a corporation/company trade union, body or other association. The applicant need not be a resident or a national of the state concerned or any high contracting party (ECHR state).

In the case of the right to life, a representative of the deceased person/close relatives may bring an application. In other cases, the representatives have standing in relation to violations in so far as they are directly affected themselves. Some rights are personal and cannot be claimed to be breaches made by representatives or relatives under any circumstances.

Cases on behalf of minors are usually brought by parents or guardians. Persons with a legal or other disability are not precluded from making applications.

Exceptionally, when a practice or legislation may damage a large number of persons without it being possible to ascertain if the applicant is a victim, the application may be allowed. Otherwise, it may be impossible to identify any applicant.

In the Norris case, the applicant was permitted to proceed even though the legislation criminalising consensual sex between men had never been enforced against him and there was a policy of not enforcing it at all.

Violation by Contracting State

The violation must have been committed by a contracting party state. The state is liable for the acts of its executive, legislature and judiciary. This was responsible for public bodies, even those with a significant element of independence under its broad control. It is not responsible for private bodies, even if they are representative trade bodies. The state may be responsible for the failure to have or impose a law to prevent damage by private persons.

Courts may only deal with the matter after all domestic remedies have been exhausted according to the generally recognised rules for international law and within a period of six months from the date on which the final decision was taken.

Domestic Remedies Exhausted

The application of the rule of exhaustion must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights breached by the state. Accordingly, it must be applied with some degree of flexibility, having regard to the circumstances and without excessive formalism.

Applicants must use remedies provided by the state which are sufficient to provide redress for the breaches concerned. There may be judicial or administrative remedies. They should be pursued to the highest court or body available. They must be done so within the required time limits.

If the national remedy is inadequate or ineffective, it need not be pursued. However, there is a presumption that this is not so. There may be exceptional circumstances where the applicant is excused from exhausting domestic remedies.

If the national case law shows that there is no reasonable chance of success with an appeal, the applicant is not obliged to take it. A lawyer\’s formal opinion may be accepted in this regard. However, the applicant\’s doubt about the prospect of success is insufficient.

The applicant must furnish information that the above requirement has been complied with. If he does not, the Court may examine the matter on its own motion. Where a judgement has not been given within a reasonable time, particularly in the case of repeated breaches, domestic remedies may not require to be exhausted.

Exhaustion Issues

The principle of exhaustion does not apply where there is an administrative practice. The administrative practice may be such that repetitive acts, acquiescence or tolerance shows a particular practice. It may be an administrative practice for this purpose even if it is tolerated only at a subordinate level and notwithstanding that measures are taken at a higher level from time to time.

The exception for administrative action is justified in seeking to prevent practices incompatible with the Convention, which consist of an accumulation of identical or analogous breaches which are sufficiently numerous or interconnected as to amount not merely to isolated instances or exceptions but a pattern or a system.

Official tolerance of acts which are plainly unlawful may be tolerated in the sense that superiors appears aware,  take no action to punish or prevent them or higher authorities in the face of numerous allegations manifest indifference by refusing any adequate investigation of their truth or falsity or that in judicial hearings a fair hearing of such complaints is denied.

Application; Time

The application must be made within six months. It commences from when the applicant becomes aware of the act or decision of which he or she complains. Where there is a continuing situation, time runs from the end of that situation.

The Commission and Court is to distinguish between instantaneous acts with enduring effects or which might have enjoying effects from violations which continue. Regard is had to the nature of the complaint, the effects of it on the applicant, the duration and the prolongation of the operation of the act.

The time limit is strict and cannot be waived. Protocol 15 is intended to reduce the period to four months when it is ratified in full by all 47 states.

Applications; Eligibility

An application is inadmissible if it is substantially the same as a matter which has been examined by the court or has already been submitted to another procedure of international investigation or assessment and contains no relevant new information.

This may happen where remedies have been pursued under another international Convention or regime. It may also apply where the applicant seeks to reopen proceedings after being declared inadmissible, alleging further areas or new details of the same complaint.

An application may be ineligible if it is manifestly ill-founded. If, pursuant to an initial assessment of the substance of the case, it appears unmeritorious, it may be rejected. The allegations or facts may be wholly unsubstantiated. Even if substantiated, it may be such as could not constitute a breach of the Convention.

Application; Requirements

The application must not be anonymous. The exercise of the right may not be an abuse of the right of application. An applicant may not take advantage of the Convention to perform acts which undermine the rights guaranteed.

There may be an abuse of the right of application where improper use of the procedure is made to bring the complaint before the court. Where a matter is subject to multiple unmeritorious applications, it may be struck out. The presentation of incomplete or misleading information may be an abuse of the right.

An application is not admissible if the applicant has not suffered a significant disadvantage unless respect for human rights as defined in the Convention and Protocols thereto, requires an examination of the application on its merits and provided that no case may be rejected on this ground, which has been duly considered by a domestic tribunal.

This is a filtering mechanism which was added by Protocol 14.  It is designed to deal with claims with minimal impact, such as not to were in consideration by an international court. This threshold is relatively low in terms of financial loss. However, if the loss is trivial, it may apply.

The application will depend on the nature of the right. Deprivations of liberty are unlikely not to constitute a significant disadvantage. In some cases, offences with a relatively small penalty may give effect to laws which have a chilling effect. In this case, there may be a significant disadvantage.

Revisions

A Protocol to the European Convention on Human Rights, which replaced the procedures for applications, took effect in 1998. A further protocol removes the second safeguard from the non-significant disadvantage (domestic tribunal) and reduces the time limit for admissibility to four months.

The former facility for inter-state complaints (used notably by Ireland in the early 1970s in relation to alleged torture in Northern Ireland) was abolished. It was perceived to have had a political overtone.

The Commission and Court have been replaced by a new permanent court that deals with both the matter of the admissibility of claims and their merits.

Individuals may apply to the court.

A committee of three judges may consider the merits of an admissible claim. Where the case law establishes the interpretation and application of the Convention in the circumstances, the purpose is to determine routine and /or repetitive claims more efficiently.

Applications are considered initially by a three-judge committee, which considers the admissibility criteria. It must be unanimously ruled admissible.  The case then proceeds to seven judge Chambers, including the judge in respect of the respondent state It considers written arguments and investigates material facts which are disputed. It may hear oral arguments. A decision is made on whether the complaint is admissible. The case may be settled.

Thereafter, there is a consideration of the merits. Commonly, the preliminary application and the consideration of the merits are in a single procedure. Cases of special difficulty may be referred by a Chamber to the Grand Chamber of 17 judges.

Systematic Violations

A new court rule in 2011 dealt with potential systematic and structural violations of human rights. Where there is systematic or structural dysfunction in the county concerned which has given rise to similar applications, it may select one or more cases for priority treatment under the pilot procedure. Related cases may be adjourned on condition the government acts promptly to examine the national measures and satisfy the judgement.