EUROPEAN COURT. APPLICATION AND REPRESENTATION

For decades, Ukraine has ranked among the top three countries for which the European Court of Human Rights has most frequently issued rulings regarding violations of human rights and freedoms on its territory (and it has even led this list). Unfortunately, this situation has changed little, forcing Ukrainian citizens to continue seeking justice outside their own country. At the same time, many people, having received inadequate protection from their law enforcement and judicial bodies, become disillusioned and cease their struggle for rights. This largely occurs because they are poorly informed about ways to protect their rights abroad, in international judicial institutions. Therefore, there is a need to clarify the method of protecting human rights and freedoms through appeals to the European Court.

In July 1997, our state ratified the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, and in February 2006, it recognized the decisions of the European Court of Human Rights as a source of law. Thus, Ukraine, along with other participating European states, has undertaken the obligation to ensure the observance of the rights and freedoms defined by the Convention on its territory and has acknowledged the jurisdiction of the European Court of Human Rights.

It should be noted that the European Court of Human Rights is not a higher instance above national courts and does not have the authority to review or annul decisions made by Ukrainian courts. However, this court can establish the fact of a violation of human rights as outlined in the Convention, compel the state to rectify such violations, and award compensation for the damages caused by these violations. Furthermore, if the Court renders a positive decision for the applicant, they may raise the issue of reviewing their case before national courts under exceptional circumstances.

It is important to emphasize that the European Court of Human Rights only considers cases related to violations defined by the Convention on Human Rights and does not accept cases regarding any other types of violations. Fundamental rights include: the right to life, the right to liberty and personal security, the right to a fair trial, the right to respect for private and family life, the right to marriage, the right to an effective legal remedy, and the right to freedom of thought, conscience, and religion, among others. Regarding the prohibitions guaranteed by the Convention, one should mention the prohibition of torture and inhuman or degrading treatment or punishment, the prohibition of the death penalty, the prohibition of slavery and forced labor, the prohibition of discrimination in the enjoyment of rights and freedoms, the prohibition of expelling a person from the territory of the state of which they are a citizen, or denying a person the right to enter the territory of the state of which they are a citizen, and the prohibition of punishment without law, among others.

The first thing a person typically encounters when approaching the European Court of Human Rights is the establishment and justification of the violation of their rights and freedoms. As mentioned earlier, not everything that seems unjust to an individual can be appealed to the European Court. This stage is extremely important because if a person does not specify in their complaint which article of the Convention they claim has been violated, and fails to properly substantiate the fact of such a violation, the judge of the European Court will unilaterally decide, in the course of determining the admissibility of the application, to deem it inadmissible, meaning that there is no apparent violation of the applicant’s convention rights.

It is equally important to submit such a complaint within the specified timeframe. Currently, this period is four months from the date of the final decision issued by the national court. It should be emphasized that the European Court takes deadlines quite seriously, and if a complaint is submitted even one day later than this four-month period, the court will dismiss it, deeming it inadmissible. Moreover, addressing the deficiencies of a complaint or resubmitting an identical complaint is not provided for by the Convention and therefore will not be considered.

Attention should be drawn to the concept of a final decision at the national level. The fact is that the Court can only consider a complaint if the documents submitted indicate that the individual has exhausted all domestic remedies. Otherwise, the Court will reject the complaint as inadmissible. In other words, if a case allows for cassation appeal of the court’s decision, submitting a complaint to the European Court immediately after the appeal proceedings will be deemed premature, as it indicates that all means of legal protection at the national level have not been utilized, which will result in the rejection of the complaint as inadmissible.

These and other circumstances are of significant importance for the successful defense of rights in the European Court of Human Rights. As previously mentioned, the Convention does not allow for the correction of defects in a complaint or its resubmission after such corrections. This indicates that a complaint can effectively be submitted only once, without the possibility of rectifying any mistakes made.

Lawyers representing clients at the European Court are familiar with the established practices of the Court, keep track of its legal positions, and possess the necessary skills to file complaints that are likely to be accepted by the Court. First and foremost, a representative lawyer at the European Court of Human Rights will analyze the decisions of national courts, study the case details, and determine the most appropriate way to defend the individual in this international judicial institution. Once the relevant article under which the complaint will be filed is identified, the lawyer will assess the availability of evidence or offer assistance in gathering evidence that the client may lack but which is essential for achieving a favorable court ruling. After collecting all the necessary documents for filing the complaint, the lawyer will prepare the complaint using the appropriate form, which can be downloaded from the Court’s website, and will send the complaint by postal service to the Court in Strasbourg, France.

If the complaint is deemed admissible by the Court, it will forward the complaint to the government of the country against which the complaint was filed and invite the government to provide explanations regarding the substance of the complaint. Following the government’s explanations, the Court will send them to the applicant or their representative (a lawyer with standing before the European Court) and offer them the opportunity to provide further clarification based on the government’s explanations. This exchange of explanations will continue until the Court has clarified all necessary circumstances of the case and is ready to deliver a judgment.

The work of a lawyer representing clients in the European Court does not end with a favorable decision in a case. Such a decision must be enforced, starting with filing a request for review of national court decisions under exceptional circumstances, and concluding with the restoration of violated rights and the collection of awarded compensation (damages).

As we can see, the range of services provided by a lawyer in representing interests at the European Court is quite broad, which requires not only theoretical knowledge but also practical skills in approaching the Court in cooperation with this international tribunal. However, this does not imply that an individual cannot independently submit a complaint to the European Court of Human Rights. To do so, they need to familiarize themselves with the materials available on the website of the European Court of Human Rights, which includes, among other things, specific instructions on filling out the complaint form and clarifications on key aspects of approaching this international judicial institution.