Ok, so be it. We have made up our mind. We are seriously thinking about taking our case to Strasbourg. But how do we know if it is worth it?
To answer the question, we must be familiar with the Court’s previous decisions in similar cases. Can an employee be dismissed for storing a large number of files containing pornographic images and films on his work computer or is that simply a matter of his right to privacy? As a gay guy, can I marry the love of my life? Is it always compulsory to register a demonstration in advance or can I just march onto the street on a whim? Do I have the right for investigation if I have been beaten up by the police? Do I have to put up with my wife not letting me see my child after our divorce without saying a word?
Well, the easiest option is to turn to an expert, in our case a lawyer. (What else would a blog, run by a law office, suggest?) However, if we prefer to look into the matter ourselves, there are several information sources out there. In our case it is not the lack of information, but the seemingly endless Strasbourg case-law which could give us a headache. Often it is not easy to find the relevant information and that is why we are here to help.
The primary source of information is obviously the website of the Court. This website is accessible in two languages, English and French, so if it is Hungarian you want, you won’t be offered a comprehensive overview of the case-law (apart from a few exceptions, as you’ll discover later).
HUDOC: the official website of the European Court of Human Rights
The Court’s own database, called HUDOC can be found on the website. This website includes all of the Court’s substantive judgments (by substantive, I also mean “substantive” decisions on procedural law). At the time of writing this blog entry, there are 119,639 decisions in HUDOC. It would be impossible to read all of these decisions, some of which are hundreds of pages long, especially in a foreign language. That is why we need to filter the judgements.
The first step is to identify the relevant Convention, guaranteeing the right that was infringed in our case. In 99% of the cases this is easily recognisable even for a layman. The text of the Convention is published on the internet.
It is clear for everyone that if the court made a biased decision against me, I will base my argument on Article 6 of the Convention, guaranteeing the right to a fair trial. If I am found guilty in a libel case for criticising the government (or making derogatory comments on the opposition) in an article I wrote, I will refer to Article 10 providing the right to freedom of expression and information.
Once we identified the relevant right, guaranteed by a convention, we can narrow our search, using the scroll-down menu on the left of the HUDOC screen.
It is probably worth selecting the relevant state that we file our complaint against, in cases of police brutality for example, similar Hungarian cases might be helpful. We can also search in HUDOC by keywords, but our experience shows that in most cases it does not yield relevant useful hits.
Unfortunately HUDOC is most helpful when we already know the number or title of a decision (the latter bears the name of the claimant. As mentioned before, only a fraction of the judgements is available in Hungarian. The good news is that many judgements against Hungary have been published on the website, currently 493 in total.
For us the most useful pieces of information on the website are the case-law information notes and legal summaries, compiled by the court’s staff. Let’s have a look at these in detail.
Case-law information notes
Our first and most important source is the list of case-law information notes, published by the Court on a monthly basis. These are clearly drafted, available in a pdf format in English and French (as I mentioned before, knowing one of the two working languages of the Court is indispensable for legal research. Many judgements are available in one language only, so for a comprehensive research you should be able to at least understand written texts in both languages.
Now back to the case-law information notes. These include the most important judgements of a given month, listed by convention articles. The table of contents is already very helpful: it gives one-sentence summaries of the cases. For example, when as a defence lawyer we have a suspicion that we were not given sufficient time to read through the myriad information generated by the undercover surveillance of our client and this is in violation of the right to a fair (criminal) trial, we can relax: the Court has recently had such a case.
The short sentence in the table of contents is already very helpful, by clicking on it, we are taken to a longer summary. If this suggests that the given case is relevant to us, another click takes us to the actual judgement (screenshot!).
The Court also issues its case-law information notes by year, so we can check very quickly all the 2018 judgements related to the freedom of religion for example. It is advisable to start from the latest and go backwards in time, so that we can support our application with the most recent analogue cases. We found that this method helps us to review the cases of the Strasbourg court in a couple of days.
In addition, the Court publishes its Overview of the case-law by year, highlighting judgements and decisions which either raise new issues or important matters of general interest. (This overview is different from the previously described list of case-law information note, because it only focuses on the most interesting cases.)
Another useful tool provided by the Court is the so-called Case-law Guides series, presenting the Court’s judicial practice in a manual, organised by Convention article. Please note that these Guides are not yet available for every Convention article. For example, Guides for Article 10 (freedom of expression) or Article 3 (prohibition of torture), which are key areas in the Court’s practice, are still missing. The good news is that some of these Guides have been translated into Hungarian: Article 6 on the civil law section of right to a fair trial and Article 5 on the right to liberty and security. The Court also published a dedicated Practical Guide on the Admissibility Criteria, which is an excellent idea, since the majority of applications are dismissed on the grounds of formal or procedural problems.
Factsheets and Research Reports
The Court also compiles factsheets by theme on its interesting case-law and pending cases. The choice of topics in these otherwise very informative and useful factsheets might seem completely random to an outsider. For example there are factsheets on the violence against women, life imprisonment, or taxation, but nothing on the freedom of religion. It is worth going through the list of themes, if we are lucky and we find a factsheet in a topic that is relevant for us, it could be a gold mine.
In addition, the Court also publishes Case-law research reports, the topic of which is ad hoc, but the content can be very useful. We cannot give you a rational explanation on the theoretical and practical differences between Factsheets and Research Reports (apart from their themes). Solving this conundrum is not that important from the practical point of view: the main thing is that these materials provide a lot of useful information for those looking for “judicial” practices.
Manuals describing judicial practices have one drawback: they become obsolete the moment they are published.
Here is why: courts continue to pass judgements after the publication of a book and obviously new decisions will not be included in it. The longer it takes for a publication, the more cautious we should be with the information from such a source.
The last Hungarian-language manual was published in 2011, written by András Grád and Mónika Weller. The book, published in 2013, written by the co-chair of the Hungarian Helsinki Committee András Kristóf Kádár and yours truly, specifically focused on the procedural law issues.
There are several blogs on Strasbourg case-law, of which we would like to highlight two. The recently launched Hungarian-language Strasbourgi Figyelő (Strasbourg Observer) sets out to present judgements in Hungarian. For the time being this blog focuses on the description of the decisions without the option to search by keywords, but it contains a lot of judgements, which are presented in a way that is easy to understand for everyone.
From the English-language sources, the blog published by the Human Rights Centre of Ghent University is the closest to ours. This offers critical analyses of the legal reasoning of the ECtHR on a regular basis, recommended to those willing to delve into the finer details.
We are not surprised if you are utterly confused by all this. We would not blame you if you started hesitating about doing your own legal research. It’s true, it takes a lot of time to understand the Strasbourg case-law and find the relevant judgements, especially if you are starting from scratch. It is a difficult and long learning process, but definitely not a mission impossible. To all those, who do not have the time or inclination, but want an efficient solution to their human rights issue, we strongly suggest to contact a law office, specialising in human rights – an hour-long consultation could provide information worth days of research.
There is one thing, however, we should definitely not do: resign to our grievance without at least looking into whether there is anything else that can be done even in the seemingly most hopeless of cases.