THE LAWYER IN THE EUROPEAN COURT OF HUMAN RIGHTS
Lawyer requires all the things he used in his practice, as well as the ability to correctly read the decisions of the European court of human rights.
As for the applicant and his counsel’s communication with the European court occurs in several stages.
The complaint goes to the Secretariat of the European court of human rights. The lawyers of the Secretariat analyzes the complaint and prepare all the necessary materials. A Committee of 3 judges takes a Unanimous decision on inadmissibility or complaint submitted for consideration in the House. At this stage, is rejected more than 90% of the registered complaints.
A chamber composed of 7 judges, gives answers to the questions of the ECHR, objection exchanges between the Government and the applicant on the admissibility and on the merits — makes a decision on the admissibility (admissible admits to 50% of complaints); provides answers to the questions of the ECHR on the merits – makes a decision on the merits (in 95% of the admissible claims admits the violation).
The Grand chamber consists of 17 judges, has appellate authority (within three months from the date of pronouncement of judgment by the Chamber the parties may appeal to the Grand Chamber, the decision taken by the panel of five judges); cases between States; cases in the case of a decision rendered contrary to the previous practice of the court.
The chamber may refer the case to the Grand Chamber if there is reason to believe that the practice of the ECHR may change in the event of a judgment. Further, the Committee of Ministers of the Council of Europe and the decisions of the ECHR.
Legal assistance in preparing the complaint
The first step is legal advice of a lawyer. With regard to the formalization of relations of representation, this court has its own form of power of attorney, the hallmark of which is the presence of the signature of the representative attesting to the fact that it assumes the obligation to conduct the case.
While legal advice is important to find out exactly the facts of the case, to try to determine relevant and neotrazimyi facts, as well as to check whether the applicant documented each one of those facts that are referenced. A lawyer at this stage needs to look at the facts on the basis of business practices by the European court of human rights.
In that case, if the factual circumstances are not likely to belong to the sphere of interests of the European court, the lawyer will alert the customer and explain why the complaint will not be considered in the European court of human rights. If the client continues to insist on the preparation and submission of complaints, most likely he will give General guidelines to the design of the complaint.
If the actual circumstances of the applicant are such that the lawyer can evaluate them as a potential violation, the lawyer along with the client will select the evidence. Practice legal advice, the court considers evidence any documents, medical records, expert opinions, court decisions, pictures, videos, in other words, any evidence that the client is telling the truth. The lawyer will warn that it is advisable to assure such testimony by a notary. This is necessary not only for the European court of human rights, but for the representative of the Russian Federation at the European court, which is likely to cast doubt on such evidence.
During attorney consultations attorney to determine the admissibility of the complaint. The eligibility rule is a specific set of conditions under which the complaint will be reviewed by the European court on the merits. Among the eligibility criteria, some are purely formal, such as the six-month period that begins on the date a final judgment, namely the appeal decision. The lawyer will warn that this deadline is preclusive, i.e., omitting this term is the absolute basis for rejecting the complaint as inadmissible. The chances of complaints increase when the lawyer knows that it is an object of interest of the European court, familiar with his decisions, precedents and General approaches. Legal advice will help to make a complaint.
The lawyer will also explain the order of proceedings in the European court of human rights:
— the duty to prove the violation of the applicant’s rights lies with the applicant;
— the duration of the consideration, which is an average of five years;
— the percentage of unacceptable and acceptable complaints;
— the need to confine itself to the aspects that may be of interest to the European court of human rights;
— the inability to appeal a decision of inadmissibility;
— address to be specified for correspondence with the European court of human rights;
— and some other aspects.
Counsel completely enough talk about the fact that the European court of human rights obliges a state to take any action in favor of the applicant. Because the procedure of case consideration in the European court of human rights greatly differs from judicial proceedings in Russia. Legal advice will prepare a written explanation to the client.
Drafting a complaint
Once the lawyer finds out all the facts of the case, check the compliance of the conditions of admissibility will gather the evidence that confirms the factual circumstances and clarify the order of consideration of the complaint, the subject of the treatment, the results of the appeal to the European court of human rights, he writes in the application form.
The form is designed in such a way that after first reading it would be possible to draw conclusions about the admissibility and includes the following sections:
— information about the applicant (must complete all items);
— data on the representative (at the stage of filing a complaint with the presence of a representative optional);
— the facts of the case (most important point);
— description of the violations;
— indication final and other decisions adopted by domestic bodies;
— indication for treatment in other international instances;
— violation of (or rather, pleading the part where you specify what rights the claimant requests to declare violated);
— the list of applications.
An important point in the form is a description of the facts as the facts declared admissible, not as a lawyer they were qualified. Guiding the form, the applicant and the lawyer thereby limit the range of factual circumstances to be considered by the court, in other words, define the subject of research for the European court of human rights.
In General there are two strategies for presenting cases at the European court of human rights.
Following the first strategy legal advice describe as broadly as possible all the factual circumstances, even if they are not too well proved, and also alleges violations of the maximum possible number right. The advantage of this strategy lies in the fact that the applicant avoids danger do not specify some important fact, and lawyer allegations that he neglected the interests of the client. At the same time the danger of this strategy lies in the fact that in the actual circumstances can get “lost” legal issue, in connection with which a complaint may be declared inadmissible as manifestly ill-founded. In addition, the complaint itself can be considered a longer time.
The second strategy is to select the most clear and unequivocal factual circumstances, which are well supported by evidence, and to declare the failure of one of the three rights guaranteed by the European Convention on human rights. The complaint is simple and obvious, increase its chances to be declared admissible. The main drawback of this strategy is that too late to add any factual circumstances to the originally stated almost impossible.
The choice of the first or second strategy depends mainly on personal choice of the applicant and the views of an experienced attorney. The choice is determined by the merits of the case, and both strategies can be applied, trying to take into account their weaknesses and avoid negative consequences of the principal
In the section “description of the violations,” the lawyer says, what is manifested violation. To complete this section you must know at least the General approaches of the European court of human rights to analyze the rights guaranteed by the Convention. Therefore no legal advice can not do.
The analysis of rights should be carried out by three main parameters:
1) performance of the negative obligations of the state;
2) compliance with positive obligations to prevent such acts;
3) procedural obligation to investigate the fact of beating or murder.
It should be noted that the European court of human rights finds a violation of law, if the state party has not fulfilled at least one of the foregoing obligations. In practice, the court finds a violation in connection with the failure of positive or procedural obligations.
In the analysis of the right to freedom and personal inviolability and the right to a fair trial in legal advice will help:
— to indicate what law has been violated;
to determine exactly how it was produced interference in the exercise by the applicant of his right;
— to investigate the legality of the intervention;
— compare goals of intervention with an exhaustive list.
— to prove that such interference was not necessary.
The lawyer proves that the interference was illegal, i.e., the applied normative act was not sufficiently clear and unambiguous that the interference was not proportionate. For a substantiation of the complaint from the lawyer is required to give its own assessment of the facts. Each attorney representing the interests of applicants in court can produce your own style.
To check the exhaustion of domestic remedies in the form posed three questions:
— a final judgment, as a rule, the appeal decision;
— list of other decisions adopted on the case;
— are there any remedies which might be engaged by the applicant.
The last question requires some explanation. In relation to Russia in this issue you can specify treated or not the applicant in Supervisory review proceedings. As the European court of human rights and the Supervisory authority may apply at the same time, in this paragraph you can write:
a) the applicant has the right to appeal under the Supervisory procedure, but intends to do so, as the Supervisory-review procedure was ineffective;
b) the applicant sought Supervisory review of (and to clarify when and in what court).
The remaining sections of the form require no special comment, just the applicant with the assistance of a lawyer will answer questions.
The application form should be written in Russian. It is better to entrust the translation of the actual circumstances, the Secretariat of the European court of human rights, and then to use their terminology.
If prior to the expiration of the six-month period, which is very hard, remains week in the European court of human rights, you can send the pre-complaint. She must not meet any particular form. The lawyer will point out all the factual circumstances that must be present in court.
The application form together with the applications sent to the European court of human rights, by registered letter with return receipt to the following address:
Au Secretaire de la Cour Europeenne des Droits de l-Homme Conseil de l-EuropeF-67075 Strasbourg Cedex
The return receipt comes back in three or four weeks. If the application form was filled in correctly from the point of view of the Secretariat of the European court of human rights, in about two or three months the applicant will receive a letter of registration of his complaint, stating that the complaint will be investigated as soon as possible.
Registration number of the complaint should indicate in any letter which the lawyer will sent to European court of human rights. The court also specifies this number in all correspondence with the applicant and his lawyer. It should be noted that the European court of human rights sends message only to one address, so the applicant and the attorney must agree which address will receive letters from the court.
After the registration form, many claimants believe that the complaint will be reviewed by the European court of human rights on the merits. Registration means only that a complaint has been queued and will be analyzed by the lawyers of the Secretariat.
The period of uncertainty of the further destiny of the complaint is about two to three years. During this time, the request of counsel and attached documents are reviewed by the staff and judges of the European court of human rights. The applicant and his lawyer can read only their conclusions.
In the worst case, the applicant receives a letter in which it notified of the decision on inadmissibility. This decision is made unanimously by three judges without specifying the motives. The letter only gives a General reference to article 34 and 35 of the European Convention on human rights. The decision not to appeal, so the applicant can only accept it.
In the best case, the second stage of work with the European court of human rights — communication.
At this stage, the lawyer will draw up some formal documents:
— power of attorney of the representative (if it has not been issued earlier);
— the funds allocated for the services of a lawyer to prepare written documents.
— to answer the question of the court about the preferences of verbal or written order of consideration of the complaint.
At this stage, the lawyer receives a letter in which he reported the complaint to the Government. This letter enclosed a description of the facts in English, as they were aptly summed up by the lawyers of the court and questions to the parties, i.e. the applicant and the Government. A letter of the European court of human rights means that the complaint and communicated the decision on admissibility and merits will make the Chamber and it will be motivated. In a letter to the European court of human rights will be determined by the date of submission of the objection of the Government in Russian and English languages.
After receiving the Memorandum of the government of the European court of human rights would send it to the lawyer to ensure that he had the opportunity to answer the court’s questions and to object to the Memorandum of the Government. The Government and the counsel shall have eight weeks to provide its Memorandum. If the applicant sent a complaint yourself, then at the stage of communication the court will ask him to choose a legal representative. The applicant will have to submit a power of attorney indicating name and other data representative of the address of the court.
If the applicant cannot afford an attorney, he may appeal to the European court of human rights with a request for provision of funds allocated for the services of a lawyer to prepare written documents.
Funds are provided directly to the lawyer, the petitioner in the request to specify, who exactly will represent him. In response to the request of the applicant the court shall send him a form with questions about his finances: wages, the availability of movable and immovable property, loans, mortgages, securities, dependents.
Form prepared in the English language and fill it should be also in English. Form filled in three copies, each signed by the applicant, two of them go to the European court of human rights, and the third is the applicant (or legal representative).
If the issue is solved positively, the court shall send to the legal representative of the approval form provision of funds, which will define the size of the allocated amount. The advocate must sign this form and the form with details of his account. These forms are signed in triplicate and two of them should be sent to the court.
Amount of allocated funds is 600 — 700 euros. This amount is the same for all countries of the Council of Europe. The lawyer gets translated into a certain court of the amount to your Bank account within two to three months.
The court always in his letters instructs the applicants and their lawyers on when, what and how to do it, so it is important to follow these instructions. In the same period, the lawyer receives the request of the European court of human rights on which the order of the hearings will prefer the applicant. If the applicant wishes to have his case considered at an oral hearing, he shall inform the court, giving reasons for their choice. In any case, even if both parties — the applicant’s lawyer and the Government — would prefer an oral hearing, the court will decide this question at their discretion. The General order is a written review of cases and interpretation is the exception. By the time the lawyer will draw up all the previous procedural papers, the court will send a Memorandum of the Government, the Government’s responses to the questions put by the court, and will also indicate the date of submission of the Memorandum.
The court will consider only those questions which he communicated. As a General rule, the court would not return to review those aspects of the complaint that remain outside of the issues raised. When the applicant and his lawyer believe that other aspects also deserve consideration, they can draw the court’s attention on them again.
Before preparing his objections, the lawyer has:
— your complaint (with annexes);
the facts summarized by the lawyers of the court;
— questions of lawyers;
— Memorandum of the Government (Russian and English) with annexes, if any.
The main purpose of the briefing is to clarify the legal positions of the parties. Unlike the application form for Memorandum, there is no certain definite form. As the sample used directly the decisions of the European court of human rights.
The Memorandum should include the following sections:
— “procedural” (indicating when the complaint was registered, when filed, when a response was received by the Government);
— description of facts (this section is optional: if the applicant and his counsel agree with the statement of facts prepared by the court, they can not be repeated if counsel believes that the facts stated with distortion, they can be described again, adding distorted moments);
— answers to questions;
— the subject of the appeal (again, specify what rights the lawyer said violated).
Answers to questions can be called the main part of the Memorandum.
From the point of view of legal practice should follow a few rules:
— specify which of the rights the lawyer said violated at the beginning and at the end of the answer to the question
— to specify the violation
— to respect the General principles of the analysis of violations on various counts.
In the Memorandum it is possible to cite previous decisions of the European court of human rights, but do not abuse this. In presenting its objections, counsel for the appellant is in a better position than the Government at this stage, as it has the opportunity to comment on the Memorandum of the Government.
Objections to the Memorandum of the Government can be submitted both in Russian and in English. Objections must be submitted to the appointed date, it is best to send by Fax and registered mail with notification. The Fax number of the European court of human rights printed on any letter in the footer.
After referral to the court its objections to the applicant and his lawyer comes the second waiting period. As a rule, this period is shorter than the waiting communications or failure of the Committee. And the applicant has definitely can expect to receive a reasoned decision on admissibility, although the probability of recognition of a complaint inadmissible is still large enough.
A decision on the admissibility
If the court has no additional questions to the lawyer or to the Government, on average, a year after the submission of memoranda, the attorney can get a decision on admissibility.
The decision is one of the official languages of the Council of Europe — English or French. Decisions on the Russian Affairs, as a rule, be submitted in English. This decision will be sent to counsel by mail. The decision on admissibility and merits will also be posted on the website of the European court of human rights, it is placed on the Internet three weeks after the adoption, so the applicant may get the text of the decision before it appears on the website.
If the solution to the complaint declared inadmissible, the proceedings in the European court of human rights ends. The lawyer has no opportunity to appeal this decision
Communication before the decision on the merits
If the complaint is declared admissible, the Complainant and his attorney, comes the third stage with the European court of human rights. Additional objections and documents that the parties consider it necessary to submit, must be submitted by the same date specified in the letter to both parties. The letter also indicated that the deadline for the submission of additional objections and documents cannot be delayed. At this stage all papers should be submitted in one of the official languages of the Council of Europe.
Only at this stage should be submitted to the European court of human rights of the applicant’s claim for just compensation:
— pecuniary damage;
— material harm;
— legal costs.
Usually, the court will award compensation to it of moral harm that explains the content of the contested rights in the European court of human rights. Russian cases the amount of compensation for moral damage range from 500 to 5000 Euro.
The average amount of just compensation is 2000 — 3000 euros. The exception was the amount awarded on the complaint of the “Ilascu and others vs. Moldova and Russia”, which amounted to a total of more than half a million euros. In the case “Mikheev V. Russia”, to the applicant, who was subjected to torture during interrogations by the police, with the result that jumped out of the window and broke his spine, was awarded compensation for material damage in the amount of 130 thousand euros and 120 thousand euros for moral damage. Determining the amount of just compensation, the lawyer needs to adequately assess the damage caused by the violation.
The size of material injury must be documented. In the above case “Mikheev V. Russia” of financial compensation for this category of cases was awarded for the first time and amounted to 130 thousand euros in respect of loss of earnings by the applicant.
Legal costs can include the fees of lawyers for conducting cases in the European court of human rights, the cost of postage. The lawyer will warn that all of the above expenses must be documented. The largest amount of legal fees on Russian Affairs was awarded in the case of “Gusinsky against Russia” and amounted to 88 thousand euros.
Documents relating to the size of legal costs, must also be submitted within the time specified by the court.
An oral hearing
All complaints are dealt with in written procedure, but in some cases can be assigned to an oral hearing. An oral hearing may be assigned separately or all issues will be dealt with in one hearing. The parties reported the appointment of oral proceedings in the two months before the hearing. The date of the oral hearing may change and the applicant or his attorney will be notified.
If the court decided to hold an oral hearing, the applicant or his lawyer will be sent a letter in which the date of the oral hearing and put questions to the parties to the oral hearing.
In the oral hearing can participate the applicant’s lawyer and the applicant himself. If one of the lawyers was not formally stated as a representative in the early stages of the proceedings, should send a power of attorney.
The funds can be allocated to only one lawyer, they are allocated only after a hearing, based on the actual presence of a lawyer and the applicant.
The speech is in English or French, in very rare cases the lawyer may be allowed to speak in his native language. To represent additional documents the court provides at this stage a limited time. You should send only those additional documents appeared later than the complaint was filed, and are of great importance for the resolution of the case.
The purpose of the statements of the parties during the oral hearings is to convey its legal position before the court, so the task of the lawyer is to articulate the “legal position”.
The objective of the parties is facilitated by the fact that the court puts its questions to an oral hearing.
The performances of the parties is strictly thirty minutes, and to speak for longer than this time is unacceptable. In the speech need to reiterate what the right has been violated in respect of the applicant, to repeat, what has been the violation of a right.
In a statement, the lawyer can afford the emotional evaluation.
The text of the presentation should be submitted to the European court of human rights the day before the oral hearing. An oral hearing is assigned for a certain time, and list the docket of cases can be viewed online at the court’s website.
In the meeting attended by the counsel for the Complainant and the Respondent state. Sits in the chamber of seven judges, including the President of the Chamber, two or three additional judges and the head of the Secretariat section. If the case is heard by the Grand chamber, she sits, composed of 17 judges, three or four additional judges and the head of the Secretariat section.
The sequence of statements of the parties is determined by the stage of the case. If the issue of admissibility, the first acts the Government side, and if in fact — the lawyer of the applicant. Duration of performance of each side is thirty minutes.
The total duration of the oral hearing does not exceed two hours.
The decisions of the European court of human rights
The ruling shall be made within a year from the date of adoption of the decision on admissibility.
The resolution includes:
— an enumeration of the composition of the Chamber hearing the case;
— the name of the applicant, his representative(s) representative of the Respondent state;
— the procedure of complaints to the European court of human rights;
— description of the facts;
— reference to the domestic applicable law of the Respondent state;
— the subject of the application;
— questions of law, which, as a rule, divided according to the impugned articles, which specifies the positions of the parties and the findings of the court;
— the operative part: it lists the findings of the court, and specifies the amount of fair compensation and legal costs awarded.
In accordance with the European Convention on human rights the decisions of the European court are obligatory for execution. Fair compensation must be paid within three months from the date of the judgment.
“The high Contracting Parties undertake to abide by the final judgment of the Court in cases to which they are parties. Final judgment shall be transmitted to the Committee of Ministers, which shall supervise its execution”.
The practice of appealing to the European Court of human rights is becoming more and more common, so advocates need to know and actively use the possibilities of redress for citizens who turn to them for legal assistance, help to seek reasonable compensation from the state.
The work of the lawyer in the European Court of human rights has its own specifics, which requires the lawyer who took the decision to represent the interests of the principal in the European Court of justice, certain knowledge and skills. This specificity is manifested not only in the preparation of the complaint, the evidence, in the written pleadings, etc., but also in the relationship of the lawyer with the client.
The European court of human rights — our legal reality, in order to turn this on and get a positive result, you need to know that this international legal framework is, to know his legal practice, you need to be able to use, to possess the necessary legal skills possessed by only experienced lawyers.