Frequently asked questions:
The European Convention on Human Rights is an international treaty. By signing it, states enter an obligation to secure the rights and fundamental freedoms which are enshrined in the Convention to persons in their jurisdiction. Among those rights are for example the right to life, prohibition of torture, freedom of speech, the right to fair trial or freedom of conscience and belief.
The European Convention is an instrument of the Council of Europe (not of the EU). All 47 member states of the Council of Europe have signed it.
Is the ECHR really important for people living in democracies? Doesn’t it rather play a role in totalitarian states and dictatorships?
The European Convention on Human Rights does not guarantee any rights which would not be entrenched in the legal systems of most signatory states. But the Convention – and the control of its observance by the European Court of Human Rights – adds an international dimension to the protection of fundamental rights. The ECHR was drafted after the Second World War, after it had become apparent (in particular because of the atrocities committed in Germany) that the protection of human rights on state level is not always sufficient. The Convention was therefore conceived as a bulwark against totalitarianism. In the course of the course, the European Court of Human Rights has interpreted in an increasingly broad fashion. Therefore they have far reaching implications on national law and it application by domestic courts. The ECHR thus does not only play a role in cases of massive violations of human rights; it has also gained importance in furthering the protection of human rights in mature democracies.
The European Court of Human Rights is mandated to control the observance of the European Convention of Human Rights by states which have signed the Convention. States which sign the ECHR enter an obligation to secure certain rights to persons in their jurisdiction. The European Court of Human Rights controls whether they meet this obligation.
It does not act on its own but upon complaints. Individuals or groups of individuals who deem that their rights under the Convention have been violated may lodge an application with the European Court of Human Rights. The Court then examines whether the state against which the application was directed has violated its obligations. In addition to that, states may also file complaints against other states. However, this has remained rare so far.
The European Court of Human Rights can find that a state has violated its obligations under the European Convention of Human Rights. For the applicant, this entails the moral satisfaction that his right has finally been officially acknowledged.
The European Court of Human Rights is not vested with the authority to quash or overturn a judgment or decision rendered by national authorities. However, the domestic laws and procedural codes of many signatory states of the European Convention on Human Rights stipulate decisions and judgments come under scrutiny if the European Court of Human Rights has found a violation of the Convention. For example, applicants are often entitled to a re-trial if the Court finds that their right to a fair trial has been violated by a member state.
In addition to finding a violation, the European Court of Human Rights can also grant compensation. Compensation may be awarded for pecuniary damage or non-pecuniary damage. Compensation for non-pecuniary damage is to redress the distress suffered by the violation of Convention rights and to attach some financial responsibility on the part of the state to the infringement. The amount of compensation depends on the circumstances of the case. Expectations should not be too high. While the European Court of Human Rights has granted substantial amounts of compensation in cases concerning severe human rights violations, the sum lies somewhere between 2.000 and 8.000 Euros in some cases. Also, in some cases the European Court of Human Rights will find it sufficient to hold that there has been a violation and not award any compensation.
Compensation of pecuniary damage is to put the applicant into the position he would have been in without the violation (as far as this is possible). The applicant is entitled to compensation of the financial loss he has suffered on account of the violation. Pecuniary damage often plays a role in proceedings regarding the violation of the right to property.
Applications are only admissible after the applicant has exhausted domestic legal remedies. The applicant must have availed himself without success of all legal possibilities to have his right acknowledged which were available to him on a national level. It depends on the circumstances of the case at hand which avenues the applicant has to pursue on state level before turning to the European Court of Human Rights. It is a matter frequently in dispute before the European Court of Human Rights whether applicants have satisfied this requirement. Applicants should therefore consult a lawyer before lodging their application. As a rule of thumb: An application is not possible yet if the applicant can still appeal against the domestic judgment or decision.
Currently (December 2014) a time limit of six months applies to applications to the European Court of Human Rights (this time limit will be shortened to four months as soon as all member states have ratified the 15 Protocol to the ECHR). The time limit starts running with the decision on the last effective legal remedy of which the applicant could avail himself at the domestic level. This is another reason (in addition to the requirement to exhaust domestic legal remedies) to scrutinize very carefully which legal steps should be taken before lodging an application. there is a risk that the dead line for submitting applications expires while the applicant is engaged in pursuing a legal avenues which the European Court of Human Rights does not consider effective.
Everyone can file an application himself. There is no legal requirement to be represented by a lawyer during the initial phase of proceedings. When the Court receives an application, it examines whether it is manifestly ill-founded or clearly inadmissible. If it comes to the conclusion that the application might have merits, it informs the case against which the application is directed about the application for the state to respond. From this point on, the applicant needs to be represented.
Event thought it is permissible for the applicant to represent himself up to this point – it is not advisable. In the course of the years, the body of case law the European Court of Human Rights has grown and its jurisprudence has become increasingly differentiated. For laypersons it is difficult to assess the prospects of an application and to ensure all relevant facts are submitted to the Court.