Statistics on applications to the European Court of Human Rights against Ukraine indicate that the vast majority of these applications are declared inadmissible at the initial stage of their examination by the Court. Thus, out of 7 thousand applications against Ukraine that were submitted to the European Court over a period of five years, 4 thousand were for various reasons declared inadmissible for further consideration already at the initial stage.
This is primarily due to the insufficient understanding of many citizens as to what requirements are placed on applications to the European Court, how the procedure for examining their applications in the European Court of Human Rights proceeds, and the purpose and final results of this procedure. After all, the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the Convention) and the Rules of the European Court clearly establish the criteria that the process of applying to the European Court and the application itself submitted to the Court must meet. A person must clearly comply with these criteria in order to be confident that their application will be considered by the Court.
It should be noted that the Convention provides for two types of applications to the Court:
1. Applications concerning inter-state cases, when one High Contracting Party applies to the Court alleging a violation of the provisions of the Convention by another High Contracting Party.
2. Individual applications submitted by a person against a High Contracting Party.
The subject of discussion of this article will be individual applications as the most typical and currently relevant.
Before submitting an application to the Court, it is necessary to ensure that all the criteria that the application must meet are satisfied.
An application must be submitted against a state that is a party to the European Convention and cannot be directed against a private individual or non-governmental organization, as the European Convention protects the rights and freedoms of individuals from arbitrary interference by the state.
However, this does not mean that the Convention does not provide a person with any protection from interference with his or her rights by other individuals. According to Article 1 of the Convention, each state party to the Convention undertakes to secure to every person within its jurisdiction the rights and freedoms defined in the Convention. Under this provision, the state has a positive obligation, which may involve the state taking certain measures necessary to protect the rights and freedoms provided for in the Convention and aimed at ensuring respect for these rights and freedoms even in the sphere of relations between individuals.
For example, in the judgment in the case of "Sovtransavto Holding v. Ukraine"* the Court noted that when it comes to litigation between individuals or legal entities, the aforementioned provision of the Convention imposes on the state an obligation to ensure the judicial procedure in such a way that it contains the necessary procedural guarantees and allows courts to effectively and fairly resolve all relevant disputes between individuals. The Court stated that the unfair nature of the judicial proceedings in the national courts and the interference of executive authorities in the judicial consideration of the applicant's case indicate that the state failed to fulfill its obligation to guarantee the applicant effective enjoyment of his right to property, guaranteed by Article 1 of Protocol No. 1 to the Convention, and consequently a violation of this right was found.
An application may be submitted by any person: a natural person, a legal entity, or an association of citizens. The applicant may be an adult or a child. Moreover, he or she does not necessarily have to be a citizen of the state party to the Convention against which the application is directed. Court practice knows cases where applicants to the European Court were legally incapacitated persons.
The main requirement for the applicant is that he or she must be a victim of a violation of Convention rights or freedoms by state authorities, or a potential victim, if he or she may realistically suffer violations of rights or freedoms. The practice of the European Court also has many examples when a person was considered a victim of a violation due to the fact that a violation of the rights of another person occurred. As an example, one can cite a number of cases against Turkey, when close relatives of persons who died or went missing complained to the Court about violations of Article 2 of the Convention.
The Court considers only those facts of violations that occurred after the entry into force of the Convention for the state against which the application is submitted. For Ukraine, such a starting point is 11 September 1997. Thus, in the cases of "Aliyev v. Ukraine", "Poltoratsky v. Ukraine", "Naumenko v. Ukraine", the applicants' complaints about unfair judicial consideration of criminal cases against them were declared inadmissible by the European Court of Human Rights precisely because of the violation of the temporal criterion (ratione temporis), since court decisions in their cases were rendered before 11 September 1997.
Article 35 of the Convention establishes that the Court considers only applications submitted within a six-month period from the date of the final decision. Violation of this period makes further consideration of the application in the Court impossible, so it is necessary to be very careful in determining the moment from which the six-month period begins to run. This requirement is closely related to the requirement of exhausting all domestic remedies, since it is from the authority that is the last effective one for the protection of violated rights that the calculation of the above-mentioned period begins.
The position on this matter is ambiguous. Thus, in the case of "Kucherenko v. Ukraine" the Court established that the exhaustion of domestic remedies for Ukraine is the filing of a cassation appeal to the cassation instance, and it is from the moment of the decision by this instance that a person acquires the right to apply to the European Court. The decision of the supervisory instance was not considered necessary for the exhaustion of domestic remedies, since it was considered an ineffective remedy because the interested person could not initiate consideration of the case in that instance. And the filing of a protest was a discretionary right of a limited circle of officials.
As of today, when there is a possibility of appeal against a court decision, there is no similar decision of the European Court that would determine what constitutes exhaustion of national legal remedies for Ukraine. Therefore, those who wish to apply to the European Court can be advised to submit their applications no later than six months from the date of the decision by the court of appeal, and simultaneously file a cassation appeal with the Supreme Court of Ukraine. After the decision of the cassation court, such a decision can be sent to the Court to be attached to the case. However, after analyzing the Court's approach to determining the effectiveness of a judicial instance, one can conclude that the Supreme Court of Ukraine is an effective national legal remedy and in the near future this will be confirmed in a European Court decision.
In any case, if the legislation of the state provides for the possibility of judicial protection of a violated right, then exhaustion of national remedies will be an appeal to national judicial instances, and not any other appeals to representatives of the executive or legislative authorities. Failure to exhaust national legal remedies makes it impossible for the European Court to examine a person's application.
An application to the European Court cannot be anonymous, that is, it must be signed by the author indicating surname, first name and patronymic. If a person does not wish to disclose their identity in accordance with paragraph 3 of Rule 47 of the Rules of Court, they must inform the Court of this and state the reasons for such a request, on the basis of which the President of the Chamber may allow anonymity to be preserved in certain cases if the applicant provides appropriate argumentation. Of course, the respondent state and the European Court will have data about the applicant's identity. But for other persons the applicant's name will be unknown, and the case will be called, for example, 'K. v. ...'
The Court does not examine applications that are essentially the same as those already examined by the Court or are already subject to another procedure of international investigation or settlement, and if they do not contain relevant new information. For example, if a person has already submitted an application to the UN Human Rights Committee and wants to submit an application on the same matter to the European Court, such an application will not be examined by the European Court.
The Court declares inadmissible any individual application if it considers that the application is incompatible with the provisions of the Convention or the protocols thereto (ratione materiae criterion), manifestly ill-founded, or an abuse of the right of application. According to this requirement, the application must concern violations of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms or the Protocols thereto. If the application concerns a violation of rights or freedoms not provided for in the Convention, such an application will not be examined by the European Court.
Thus, in the case of 'Babenko v. Ukraine', the applicant alleged that the right to a fair hearing of his application (Article 6 of the Convention) had been violated, in which the legality of elections to the legislative body was challenged. The Court noted that the examination of disputes concerning the electoral procedure does not fall within the scope of Article 6 of the Convention: the legality of elections concerns the exercise of a political right, not civil rights and obligations, and this means that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of paragraph 3 of Article 35 of the Convention and should be rejected.
It is also necessary to consider the situation where a person has complied with all the requirements and submitted an application to the European Court that was registered, but at a certain stage wishes to withdraw his or her claims or the rights whose violation he or she complained of and which have been fully restored. Under such circumstances, in accordance with Article 37 of the Convention, the Court may decide to strike the application out of its register of cases. To do so, it is necessary to submit to the Court a corresponding application stating the reasons for withdrawing from further consideration of the case.
Thus, in the case of 'Sergeyev v. Ukraine', the applicant complained about the non-execution of a judgment rendered in his favor by a court of first instance. At the stage of consideration of the case in the European Court, the government and the applicant confirmed the execution of the relevant court decision, and the applicant also notified the withdrawal of his application. The Court declared this application inadmissible, noting that the dispute concerning the Convention, which formed the basis of the application, had been resolved within the meaning of §1 of Article 37 of the Convention, and there were no general grounds concerning human rights guaranteed by the Convention that would require the continued examination of the application under Article 37 of the Convention.
But notwithstanding such circumstances, the Court may continue the examination of the case if respect for the rights of the person guaranteed by the Convention so requires, for example, if the violation is of a serious nature.
As for the format and content of the application itself, Rule 47 of the Rules of the European Court clearly establishes the elements it must contain:
a) name, date of birth, nationality, sex, occupation and address;
b) representative, if any, his or her occupation and address;
c) the State Party to the Convention against which the application is made;
d) a brief statement of the facts;
e) a brief statement of the alleged violations of the Convention and the relevant arguments;
f) information about the legal remedies that have been used by the applicant;
g) the object of the application and the form of just satisfaction.
The application must be accompanied by copies of all court decisions in the case, which would confirm the fact of exhaustion of national remedies and compliance with the six-month rule.
It should be noted that there is no need to immediately look for an application form and fill out the application on such a form. Initially, an application may be sent to the Court in any form, indicating the above-mentioned details. Such an application is sufficient to stop the running of the six-month period. Then the application will be registered by the Registry of the Court, which will send an official application form, which must be carefully completed in accordance with the details indicated in the form.
An application to the European Court of Human Rights can be sent to the address:
Au Greffier de la Cour europeenne des Droits de l’Homme Conseil de l’Europe, F 67075 Strasbourg Cedex, France
* Links to this and other cases
can be found on the official website of the Ministry of Justice of Ukraine
www.minjust.gov.ua