Even though the HRA has now come into force in the UK it is still possible to make an application to the ECHR.
There are three key requirements that you must meet:
1. You must be a victim of a violation of one or more of the articles of the Convention. Generally, this means you must be directly affected by a breach of the Convention. In some cases it will be enough to show you are likely to be affected by a breach or that you belong to a group of people, some of whom are likely to be affected. For example, gay men were permitted to challenge laws that criminalized gay sex even though it was unlikely that the individual applicants would ever be prosecuted because the laws were rarely enforced.
2. Before you make an application to the ECHR you must pursue any proceedings that you could take in the UK that are capable of providing you with an adequate remedy for the breach of your Convention rights. Now that the HRA is in force this will generally mean that you will have to take proceedings in the UK under the HRA. This may not be necessary, however, where it is clear that the best you could hope to achieve from taking proceedings under the HRA is a declaration of incompatibility.
3. You must make your application to the ECHR within six months of the conclusion of any court proceedings that you have taken in the UK that could have provided you with a remedy or, if there were no proceedings that it was reasonable to expect you to take, within six months of the event which gives rise to your application. When you make an application to the ECHR you will be asked to complete one of the ECHR’s application forms. However, it is not necessary to fill out one of these forms to meet the six month rule. All you need to do is to get a letter to the court within the six months setting out: 1. Your details (name, address and nationality). 2. The country against which you are making your application. 3. The facts that have given rise to your application. 4. The article or articles of the Convention that you say have been breached.
You should send your letter to:
The Registrar European Court of Human Rights Council of Europe
F-67075 Strasbourg Cedex
Fax: 00 33 3 88 41 27 30
When it has received your letter the ECHR will send you one of its application forms to complete. If there is not enough space on the form you can set out your case in a longer document which you attach to the form. It is important that you submit your completed application form within any deadline set by the ECHR or, if no deadline is set, within a few weeks of receiving it. If you do not submit the form speedily you run the risk that the ECHR will decide that you have not met the six month deadline. If you cannot meet any deadline that is set you should contact the ECHR and try to agree an extended deadline.
Once the ECHR has acknowledged receipt of your application form it may be some time (months if not years) before you hear anything further. At this stage the ECHR may rule your application inadmissible. The ECHR will not give reasons and there is no right of appeal. If your application is ruled inadmissible you will not be able to proceed with it. If it is not ruled inadmissible at this stage, your application will be allocated to one of the ECHR’s four sections. A panel of seven judges from that section will deal with the case. This panel will always include the judge appointed by the United Kingdom. Very significant cases may be dealt with by the ECHR’s Grand Chamber.
These cases are considered by a panel of seventeen judges. A case could be transferred to the Grand Chamber at any stage in the proceedings. Your application will also be communicated to the Government at this stage, that is, the Government will be informed that you have made an application and will be invited to respond. You will be given an opportunity to respond to the Government’s observations and there may be further exchanges of written representations. The ECHR will then decide whether your application is admissible. It can rule your application inadmissible if you have failed to meet one of the three requirements set out above or if the ECHR considers that it is ‘manifestly ill-founded’, in other words, that is not arguable. If the ECHR finds your application inadmissible at this stage it will give reasons, but there is no right of appeal. If the ECHR finds your application admissible it will then go on to decide whether there has been a breach of the Convention.
The ECHR usually refers to this as considering the merits of the application. At this point you have the right to put in a claim for compensation. The ECHR calls this ‘just satisfaction’. It should include a claim for legal expenses if you have incurred any. Your claim for just satisfaction should be sent to the ECHR within two months of the ECHR finding your application admissible. Both sides may make further representations before the ECHR decides on the merits of the application. When the ECHR has made its decision on the merits of your application, you will be notified of the date on which its judgment will be made public. The judgment will be published on the ECHR’s website on that day.
If the ECHR finds that there has been a breach of your rights it may award you compensation although it does not always do so on the basis that its finding that there has been a breach of your rights is enough. Once a section of the ECHR has made a final decision on the merits of an application, either party, the Government or the Applicant, can ask to have the application referred to the Grand Chamber. This is the only form of appeal that the ECHR’s rules allow for. The Grand Chamber only rarely agrees to a referral. There is no appeal from a final decision made by the Grand Chamber.
The ECHR deals with most cases without holding a hearing; it reaches its decisions on the basis of written representations made by the parties. When the ECHR does decide to hold a hearing this will usually take place before the ECHR has decided on the admissibility of the application, although it may also hold a hearing after an application has been found admissible if it has not already held one. Legal representationAlthough you can make an application to the ECHR yourself, it would be wise to get a lawyer experienced in ECHR proceedings to represent you. Most cases are not communicated to the Government (i.e. they are ruled inadmissible at an early stage) and having a lawyer present your arguments for you may help you get over this hurdle. If the ECHR decides to hold a hearing after it has found your application admissible, the ECHR rules require you to be represented by a lawyer at that hearing unless the ECHR allows otherwise.
The ECHR has a system of legal aid although the payments which a lawyer receives under the scheme are very low. You can apply for legal aid once your application has been communicated to the Government. It is particularly useful to have legal aid if the ECHR holds a hearing on your case, as legal aid will pay the cost of your and your lawyer’s trip to Strasbourg. Eligibility for legal aid will depend on the Legal Services Commission accepting that you would be eligible for legal aid in this country. If you are not eligible for legal aid, your lawyer may agree to represent you under a conditional fee agreement, that is, on the basis that they will only get paid if you win your case and get your legal costs paid by the Government. However, as very few applications to the ECHR are successful, your lawyer may be reluctant to take this risk. If you lose your case there is no possibility of you being ordered to pay the Government’s legal costs.