, необходимо определить, относится ли вопрос к его ведению. Before filing a complaint with the ECHR , it is necessary to determine whether the matter belongs to its jurisdiction. To do this, select one or several articles that are fixed in the Convention and the protocols most appropriate to the situation. Further on these issues, the decisions of the ECtHR should be studied . If the applicant believes that the dispute may be resolved, he may begin preparations for the direction of the relevant papers. Let us next consider the procedure for filing a complaint with the ECHR.
международный орган. The ECHR is an international body. Its jurisdiction extends to all member countries of the Council of Europe, which have ratified the Convention for the Protection of Fundamental Freedoms. The competence of the institution includes review of all issues that relate to the interpretation and application of this document. взаимодействуют с 1998-го г. The ECHR and Russia have been cooperating since 1998.
In order to properly formulate an application, you must have:
- . Form of the ECHR .
- Text of the Convention and Protocols.
- Power of attorney. направляется представителем, то этот документ выступает как составной элемент официального бланка заявления. If the appeal to the ECtHR is sent by the representative, then this document acts as an integral element of the official application form. If later it is necessary to change the attorney, a special power of attorney is issued.
- по аналогичным делам. 2-3 ECtHR judgments in similar cases.
- The official instruction on filling in the forms.
- Rule 47, established by the Rules.
- Practical guidance on the grounds of acceptability.
Only a lawyer can act as a representative. Another person is admitted to the case in exceptional cases (under Rule 36 of the Rules). In some cases, the subject may be allowed to represent himself. At the stage of sending applications formally have a lawyer is optional.
крайняя мера. The application to the ECHR is an extreme measure. It can be used only if the subject has passed the highest authorities in his country. дается полгода. The direction of the application to the Strasbourg Court is six months. The calculation of the term begins with the date of the adoption by the highest state authority of the relevant controversial act.
An Important Moment
Of particular importance are the events that preceded the direction of the statement. In particular, we are referring to domestic proceedings. The possibility of applying to the ECHR must impose a certain imprint on the tactics of conducting proceedings in the national courts. In the first place, in all places where it is appropriate and necessary, reference should be made to the Convention and international practice. The relevant instructions can be included directly in the claim, petition, withdrawal and other procedural documents. In addition, before national authorities it is necessary to raise issues concerning violations of freedoms and rights protected by the Convention. Statements about this can relate to both the facts that have already been accomplished, and to the likely ones. It is not necessary to refer to specific provisions of the Convention. In such cases, it is sufficient to only indicate the essence of the admitted or possible violations. In practice, however, the reference to the norms of the Convention in proceedings before national courts will be extremely useful. This can subsequently positively affect the outcome of the case.
которой будет описан далее, должна соответствовать ряду требований. The complaint to the ECHR, a sample of which will be described below, must meet a number of requirements. It is necessary that it be:
- It is aimed at protecting freedoms and rights enshrined in the Convention and Protocols.
- It was filed against the country party to the agreement.
- It is sent after the exhaustion of all effective remedies and in a timely manner.
по гражданскому производству направляется в течение полугода с даты вынесения спорного акта четвертой инстанции. The complaint to the ECHR on civil proceedings is sent within six months from the date of the issuance of the disputed act of the fourth instance. This refers to the second cassation. отправляется после апелляционной инстанции. The complaint to the ECtHR in the criminal case is sent after the appellate instance. If the proceedings were in arbitration, the application shall be made after the first cassation. In parallel, you should apply to the RF Armed Forces. If the proceedings were conducted under the Code of Administrative Offenses, the application is sent after the issuance of the act by the second instance.
What can be disputed?
направляется только на действия государства. The complaint to the ECtHR is directed only at the actions of the state. In other words, claims can be formulated exclusively to state bodies. Among them are the courts and the police. In a number of cases, the country is responsible for inaction / actions of legal entities that are not state-owned. орган, рассматривающий заявления, связанные только с нарушением свобод и прав, охраняемых Конвенцией и протоколами. The ECHR is a body that deals with applications related only to violations of freedoms and rights protected by the Convention and protocols. Most of them concern Art. 6. It provides for the right to a fair trial. Meanwhile, not all proceedings fall under this article. For example, the ECtHR can not consider disputes over customs and tax payments related to immigration issues (entry / exit, expulsion of aliens, submission of political asylum), as well as cases involving civil servants regarding dismissal.
Reasons for rejection of the application
может быть составлена с соблюдением всей предусмотренных критериев. The complaint to the ECHR can be drawn up in compliance with all the prescribed criteria. However, in this case, it can be rejected. The reasons are:
- Challenging the decisions of the national court, in connection with the violation of state material and procedural norms, the unfoundedness of the acts passed. The latter can be caused by misinterpretation and application of internal legal documents, for example.
- Fairness of the outcome of the civil litigation.
- Innocence or guilt in a criminal case.
- Lack of evidence.
All these reasons are related to the failure to comply with the structure and content of the application.
General rules of registration
) не допускается составлять в свободной форме. The application to the Court (ECHR ) is not allowed to be made in free form. The regulation provides for a special form. The form consists of 13 pages. However, not always the information can be placed on them. In such cases it is allowed to make out applications. They should not be more than 20 pages. However, applications can not contain new facts or claims. The main text should be placed (briefly) on 13 pages. In applications, you can supplement what is already written. During registration it is necessary to clearly understand which provisions of the Convention have been violated. For this purpose, the practice of the court on them and similar cases is studied. This is important for a number of reasons. First, the study provides a better understanding of the content of freedoms and rights protected by the Convention. In addition, the logic and text of the articles should be reflected in the complaint. In the application, it is necessary to avoid pointing to facts that do not have a controversial relationship, as well as unnecessary arguments. Very often plaintiffs make a mistake, leading all possible arguments. Such statements lose credibility, their essence is blurred.
Complaint to ECHR: sample
The official Instruction provides a fairly detailed explanation on the issues of registration. Particular difficulty is caused by the completion of sections on facts and violations. Consider everything in order:
- Sheet 1. Item 0 - bar code and number. Because they do not exist, nothing is written here. Paragraphs 1-15 specify information about the applicant. направляется физлицом, то заполняется левая колонка п. 1-8. If the complaint to the ECHR is sent by the individual, then the left column of 1-8 is filled. Nothing is written on the right side. If the applicant is a legal entity, 9-15 points are filled.
- Sheet 2. Here it is necessary to put a check in front of the country that violated the freedom and rights of the applicant. As a rule, a dispute is waged with one state. может подаваться и против нескольких стран. However, in a number of cases, an application to the Strasbourg Court can also be filed against several countries. Accordingly, you need to put a tick in front of them.
- Sheet 3. Here you can find information about the representative. If it does not exist, the sheet remains empty. If the representative is present, the information is entered in the left column (18-25 points). If he is a lawyer, then the right-hand side is filled (paragraphs 26-32). In this case, the left column remains empty. In the presence of a representative, signatures and dates are put (clauses 33, 34 by the applicant, 35.36 by the attorney). Sheet 3 acts as a power of attorney. Other documents confirming the authority of the person are not attached to the complaint.
- Sheet 4. Here, the information is indicated similarly to the previous page. This part is made if the representative is a legal entity.
Paragraphs 56-58 set forth the facts. It should be said that any point of complaint is important. If information does not exist in any of them, the secretariat staff may consider the application not to be formalized. In doing so, do not forget about the content. In presenting the facts, Rule 47 of the Rules should be followed. They should be short and available for reading. The text must be divided into paragraphs with numbers. Events should be described in the order in which they took place. If the claims relate to different items (litigation), each of them is set out separately.
When presenting the facts, one should not use the texts of cassation, appellate, supervisory complaints. To describe it is necessary only circumstances, not leading their own assessment. For example, one should avoid such formulations: "The judge unreasonably and illegally fell asleep at the meeting" (the following statement will be correct: "During the examination the judge fell asleep"). Write only about the facts that matter from the point of view of practice and the Convention. Specialists recommend presenting information from a third party. For example: "The applicant was not notified of the time of the meeting." ) в своих актах. When presenting, it is necessary to follow the style that the European Court of Justice (ECHR ) uses in its acts. The documents can be sent only in cases where it is necessary and appropriate. However, in any case, bringing some excerpts should be brief. For example, an important argument is the refusal of the court to call the main witness. In this case, you can specify the following. "The court denied the request to call a witness to the meeting, reasoning that" there is enough evidence. "Despite the need to adhere to brevity, it is necessary to state all the essential facts. If new circumstances are cited already at the stage of preparing the case, they will not be taken into account An obligatory condition for the description of events is the specifics.It is not necessary to allow abstract descriptions.For example, if the applicant indicates poor conditions during the period of detention, you need to write how many hours / days it is pr continues, the number of people and beds, the size of premises and so forth.
Statement of violations, a description of the remedies used
First of all, you fill in Sheet 8 (paragraph 59). On the left is the article of the Convention (number) and protocol. On the right is a violation and supporting arguments. Arguments will differ in accordance with events and circumstances. Sheet 10 provides information on the remedies that were used prior to processing the application. On the left, the article number is also indicated, and on the right - information about the last decision (name, number, date). Further, acts of subordinate instances are indicated.
Questions from Sheet 11
In point 62 it is necessary to indicate whether the applicant has or has disposed of any legal remedy which he did not use. If the answer to this question is "yes," paragraph 63 gives a description of it. Here the reason for the non-application of measures is explained. In paragraph 64, the question should be answered whether the above complaint was submitted to other international justice or regulatory authorities. If the answer is "yes", then in clause 65 a brief description of the procedures is given. In particular, it is indicated which statements were drawn up, the name of the body, the date and content of the act passed by it. In the next, item 66, it is necessary to answer the question whether earlier the other complaints were sent to the ECHR. If the answer is positive, then in clause 67 their numbers are given.
List of annexes
It is indicated on the 12th Sheet. Before completing this section, you need to carefully consider what documents it is appropriate to attach to the application. On the one hand, the complaint should not be attached absolutely all the papers that are. At the same time, all relevant documents must be present. The instructions in this regard explain the following. Attach all judicial and other acts to which the applicant refers in the sections of the complaint, as well as other documents that are provided as evidence of the allegations of violation of the Convention and the protocols. This can be testimony, medical reports, etc. In the list of applications, you must specify the number of pages on which the papers are located so that they can be easily found. If there is not enough space in the form, you can use an additional sheet. The application shall be accompanied by legible and complete copies of all the papers listed on the list. It should be said that the applicants do not return the papers. In this regard, it is better to attach copies.
The applicant is obliged:
- Separate the papers separately by processes in chronological order.
- Number all pages sequentially.
- Do not staple, fasten or glue documents together.
The applicant independently decides which documents he will attach to the complaint. However, in any case, it is necessary to include in the list acts of the second and first instance, a copy of the appeal statement. If there are copies of acts of higher bodies, it is also advisable to attach them together with supervisory (cassation) complaints. If the application is related to the protection of the right to a fair hearing, it is appropriate to include in the list of documents and a copy of the minutes of the meeting. You do not need to certify the instances. The ECHR accepts absolutely any documents as evidence. For example, it is allowed to attach printouts from websites, information from reports of non-state and state institutions and so on.
In Sheet 13, paragraph 69, you can leave blank if the applicant has nothing to add. If there are any points, which can be said additionally, they should be cited. For example: "I draw attention to the fact that a copy of the decision of the second instance dated 01.02.2015 was received only on 10.05.2015." In point 70 the date is put. As a rule, it will be considered the day of filing a complaint, even if it comes to the Court in a few days (if the dispatch was completed in the near future). In point 71 a mark is placed in the desired position and signature. If the complaint is submitted from more than one subject, it is advisable to give and decrypt it. In point 72 it is necessary to specify the address to which correspondence will come. As a rule, the reply from the ECtHR comes with an ordinary letter. The address specified in clause 72 must be stable. Proceedings can last for several years. You can, of course, send an additional letter with the notification of the change of address. But often this is forgotten in the secretariat and the correspondence is sent as before.
Sending an application
The complaint is sent by letter. It can be simple, valuable with inventory, customized with notification. Forwarding is carried out by the "Mail of Russia", by various courier services. Sending a letter is a prerequisite. The complaint is forwarded to the following address:
European Court of Human Rights
Council of Europe
F-67075 Strasbourg Cedex.
You can also duplicate the application by fax: +33 (0) 388 41-27-30. The average cost of services will be as follows. If, for example, the letter includes 50 pages, there are no attachments other than copies of documents, then the Russian Post will take about 400 rubles, DHL - 4 thousand rubles, UPS - 3 thousand rubles.
The first main letter will come in 1-13 months. In it, the secretariat notifies the applicant of receipt of the complaint and the formation of the dossier. His number should subsequently be indicated in all correspondence. In addition, the letter will be a set of labels containing a barcode. They will also need to be used in the process of correspondence. If the letter does not contain an indication of the need to send additional securities, it will contain information that the application will be considered in order of priority. In some cases, intermediate answers come. The second main letter will indicate that either the complaint is inadmissible, or it has undergone preliminary analysis and the defendant has been notified of it. Since the issuing of the act in the latter case, the stage of communication begins. . In fact, at this stage, a ruling of the European Court of Human Rights is being prepared. If the application is rejected, the answer usually comes within the first 2 years. The second letter can be received in the first 2-3 months. This is possible if the Court, on its own initiative or at the request of the applicant, accepts an expedited procedure for the proceedings. The basis for this can be the existence of a health threat related to the private (family) life of the applicant, his child. In an expedited procedure, also complaints may be considered, on which interim measures were taken, in accordance with Rule 39, which is present in the Rules.
It should be said that filing a complaint is quite a complicated matter in terms of compliance with the rules. At this stage, it is advisable to enlist the support of a lawyer with relevant experience. In practice, cases of rejection of complaints on winning cases, compiled by the subject themselves, are not uncommon. At the stage of preparing the proceedings, the representative's participation is considered mandatory. The court has the right to refuse to request the applicant to exercise his own defense. At the preparation stage, you will have to draw up different documents. Among them is the applicant's memorandum. Its design is better to entrust to a professional.