European Court of Human Rights

Preparation and conduct of applications after domestic remedies are exhausted.

The expectation most people bring to this Court is one it cannot meet, and that belongs in the first line. The European Court of Human Rights does not sit above the national courts: it does not quash a conviction, does not alter a domestic decision and does not send a case back for a fresh hearing. It decides a different question — whether the State has violated the European Convention on Human Rights.

Below are the three parts of this practice area: what must be exhausted before applying, what the Court can and cannot do, and what happens after the judgment. This is orientation, not an assessment of anyone’s situation; every provision named is a subject for verification by the advocate.

What must be exhausted

The right to apply to international judicial bodies arises after all domestic remedies have been used (Article 55 of the Constitution of Ukraine). The conditions on which an application may be examined are set by Article 35 of the Convention: exhaustion of domestic remedies, the time limit running from the final domestic decision, and other grounds of inadmissibility. The length of that time limit has changed.

Who applies, and against whom, is Article 34 of the Convention: the application comes from a person claiming to be the victim of a violation. There is one respondent — the State (Article 1 of the Convention). Not the investigator, not the judge, not the procedural opponent.

Exhaustion is not merely passing through the tiers of appeal. It also matters whether the very complaint later brought to the Court was raised in the domestic proceedings. And what counts as the effective remedy that had to be used is a question of the Convention itself (Article 13), not only of the list of instances in procedural law.

This is the narrowest point of the practice area. An application that does not meet Article 35 receives no examination on the merits, however serious the events it describes.

What the Court can and cannot do

The jurisdiction of the Court extends to the interpretation and application of the Convention and the Protocols to it (Article 32). Hence the boundary the Court draws in its case-law: whether a national court applied national law correctly is not, in itself, the subject of examination.

Complaints are framed under particular Articles — most often Articles 3, 5, 6 and 8 of the Convention and Article 1 of Protocol No. 1. The Article under which a complaint is brought sets the subject of examination, just as legal classification sets it in domestic proceedings.

If a violation is found, the Court may award just satisfaction (Article 41). That is a separate question with its own conditions, and the Court decides it.

Not every application reaches a decision on the merits: a case may be struck out of the list (Article 37) or end in a friendly settlement (Article 39). Apart from the merits, the Rules of Court provide for interim measures — which are not an expedited hearing. The form of an application and the requirements for it come from those same Rules.

The Convention sets no time limit within which the Court must examine an application.

What happens after the judgment

A Chamber judgment does not become final at once: there is referral to the Grand Chamber (Article 43), and there are rules on when a judgment becomes final (Article 44).

A final judgment is binding on the respondent State, and the Committee of Ministers of the Council of Europe supervises its execution (Article 46). In Ukraine the procedure is set by the Law «Про виконання рішень та застосування практики Європейського суду з прав людини»: payment of the sum awarded, individual measures, general measures.

A finding of a violation does not, in itself, change the domestic decision. Reopening is a separate domestic procedure with its own grounds and its own time limit; in criminal proceedings this is Article 459 of the «Кримінальний процесуальний кодекс» — newly discovered or exceptional circumstances. Then the rules of the proceedings in which the decision was taken apply.

The criminal process into which a domestic reopening leads is a separate practice area of the association, published in Ukrainian.

There is also a second route, shorter than Strasbourg. International treaties in force, consent to be bound by which has been given, are part of national legislation (Article 9 of the Constitution of Ukraine), and the Law named above governs how the national courts apply the Convention and the case-law of the Court. A Convention argument has an addressee at home, not only in Strasbourg.

The outcome of an application is determined by the Court. Neither the time it takes nor its result is guaranteed by anyone.