I will go as far as Strasbourg! We hear this from those who have suffered some serious injustice which has not been remedied in Hungary by any court or other official body. The European Court of Human Rights (hereinafter: the Court) can indeed put right numerous injustices, however, there are many misunderstandings concerning its procedures. It is therefore useful to clarify in exactly which cases it is worth turning to Strasbourg. Subsequently, we will examine what to focus on when preparing a petition to Strasbourg.
First let us examine who can initiate a procedure before the Court as well as why and against whom.
Who can turn to the Court? The good news is that everybody has human rights – irrespective of age, sex, any crime committed, political opinion etc. It is important to dispel the delusion that human rights can only belong to natural persons. Even if appears strange at first sight, legal persons (i.e. companies, foundations and other civil organisations) also have “human” rights. Only those human rights are excluded which, because of their nature, can only belong to “real” flesh and blood people. So, legal persons, for example, do not have the right to life or the right to vote, but do have the right to property or to a fair trial.
Anyone who feels that his human rights have been violated can turn to the Court. Let’s be careful – not every injustice also constitutes a human rights violation. The list of rights protected by the Court is contained in the European Convention on Human Rights. Some examples: prohibition of discrimination, the right to private and family life, freedom of religion, freedom of speech, a fair trial in a criminal procedure, freedom of movement. The Court, by way of interpretation, included among the Convention rights certain rights which are not specifically mentioned in the Convention, such as the right to dignity or the right to access to public data. However, the Convention does not contain the right to work, the right to social security or the right to vote (the right to free elections is, however, enshrined in the Convention).
Before the Court the “respondent” is always the state under whose jurisdiction the injustice occurred – but not the actual accused person or body. Consequently, if we do not wish to leave unaddressed the harassment by the Tax Authority, we sue the Hungarian State, not the Authority itself. Similarly, if the procedure conducted against our neighbour for making our life a living hell ends in failure, we do not sue Unbearable Charles but the Hungarian State which is responsible for the functioning of the administrative and judicial system which has failed to protect our private life.
It is very important that as Hungarians we can sue not only Hungary. If our rights are violated in Germany, we can lodge a complaint against Germany. This also holds true the other way round: let’s assume that as an English tourist on a Budapest stag-night I party harder than usual and am escorted to the police station where the police officers explain to me the acceptable boundaries of a great party by way of beating me up. In this case as a citizen of the United Kingdom I can sue the Hungarian State for the violation of the prohibition of torture and inhuman treatment.
Let’s assume that we have decided to turn to Strasbourg. How can we do this? Do we simply write a letter to the Court? Unfortunately it is not that simple – let’s examine the main features of the proceedings and their biggest hurdles. The procedure contains many difficulties but we do not have to be afraid; with a little concentration we can pass the test.
We can immediately begin with three positive aspects. First, we can lodge our complaint in the official language of any of the Member States of the Court, i.e. in Hungarian, in English, in Icelandic etc. (However, in the substantive phase of the procedure it is obligatory to communicate with the Court in one of its two official languages, i.e. in English or in French.) There is no need to write immediately in English or in French since our complaint will almost surely be dealt with by national lawyers working at the Court. It is easier both for them and for us as well to work with a complaint written in our mother tongue, so use it without hesitation.
The second piece of good news is that legal representation is not compulsory before the Court (at least at the beginning of the proceedings), consequently, we can lodge our complaint without an attorney. However, during the substantive phase of the proceedings when we have to reply to the remarks of the Government, legal representation is obligatory.
The third and maybe the best piece of news is that Strasbourg is free of charge. It means that there are no court fees as there would be in a Hungarian court procedure on compensation. Moreover, in the case of an eventual loss, we do not have to pay the costs of the opponent, i.e. the Hungarian State. Consequently, the only damage we can suffer – in addition, of course, to the fact that our problem was not solved in Strasbourg either – is the loss of time spent with the preparation of the application. Well, as it is often said, time spent on ourselves is never wasted time.
After the numerous positive sides let’s look at the negative ones. Strasbourg establishes very strict formal criteria for the applications, and, unfortunately, the applicants very often cannot meet these requirements. Examining the Strasbourg procedure in detail would stretch the limits of this blog, therefore, we will confine ourselves to presenting its main points. (To those who are interested in the procedure of the Court in more detail, I recommend the book “The case-law of the European Court of Human Rights for practitioners” written together with Dr. András Kristóf Kádár, the co-chairman of the Hungarian Helsinki Committee.) The Court itself has prepared some information on its procedures, which is very useful to examine in detail before lodging our application.
Perhaps the most important thing to know is that we can turn to Strasbourg within six months of exhausting the last substantive effective domestic legal remedy, or, if there is no such remedy, within six months of the injustice occurring. This is a peremptory deadline; if we miss it the Court will not deal with our case. It requires another blogpost to analyse what the effective remedies are – in civil procedure it is the Curia’s ruling and in criminal procedure the final judgment is the required last step. The constitutional complaint classifies as an effective remedy. It does not count as an effective remedy to write a letter to different public office holders (the Prime Minister, President of the Republic, Minister of Justice etc.). If, while waiting for their answer we miss the six-month deadline, we cannot blame anyone but ourselves.
It is very important that we can turn to the Court by using an application form. In the application form we only have a few pages to describe our complaint; we must not exceed this limit! The essence of the complaint must be clear from the application form. We can attach detailed argumentation but the Court carries out the preliminary examination on admissibility almost exclusively on the basis of the application form. If we cannot pass this phase, our detailed arguments put forward in a separate attachment are useless.
It is also very important to attach to our application all the evidence and documents, judicial and other decisions supporting our cause. The Court does not conduct evidentiary procedures ex officio and it does not request additional documents or data. Consequently, if we fail to prove or substantiate an allegation, the Court will not accept it based on our word only. We should not send original documents, only copies – the Court does not send back the case-file or the documents in it at the end of the proceedings, even upon request.
If we are ready with the preparation of the application form, its actual submission is not too difficult. We don’t need to go to Strasbourg in person (although the Court will accept applications in this way), it is sufficient to post it by the final date of the deadline to the following address:
European Court of Human Rights
Council of Europe
F-67075 Strasbourg cedex
The Court does not certify the arrival of the complaint, so it is worth sending it as a registered letter. After the preliminary examination of the complaint the Court gives an application number to our case-file and sends a notification about it. We will find a barcode in the notification letter and, during our subsequent correspondence, we should attach this barcode for easier identification. After all these steps the substantive phase of the proceedings begins during which the parties put forward their arguments and the Court delivers its decision.