ECHR complaint: judicial practice

Russia is one of the leaders in applying to the European Court of Human Rights (ECHR). This gives grounds for many analysts to consider the Russian legal system one of the most unfair and politically engaged in the world. In the article we will consider questions about what constitutes a complaint to the ECHR. How to file it with the Strasbourg court (second name of the ECHR)? What are the acceptable deadlines for submitting it? We give a sample complaint to the ECHR and much more.

Story

The jurisdiction of the court is fully based on the European Convention for the Protection of Human Rights and Fundamental Freedoms. Next we will use the abbreviation Convention. If the complaint to the ECHR is based only on the norms of Russian law, then there is no point in filing it. Initially, the Convention was defended by three bodies at once: the Committee of Ministers, the Commission of the Court and the European Court itself.

The judicial procedure for the protection of rights took place in two stages:

1. Initially, a complaint to the ECHR was considered by the Commission, after which a decision was made on its future fate. This procedure resembles modern cassation in Russian law with the only difference being that a Russian judge sits alone.
2. If the commission made a positive decision, the complaint was examined in court.
3. In case of a negative decision of the commission, the complaint was transferred to the Committee of Ministers.

In 1998, the ECHR and the Commission were combined into one body, which operates today. Its decisions are final and not subject to appeal. However, the final does not mean binding. We will discuss this in more detail in the next paragraph.

Jurisdiction

Despite the fact that many countries have signed the Convention and joined the Council of Europe, for them the ECHR is not the highest instance. The European Court of Justice is competent:

• consider a complaint of a violation of the right and freedoms declared in the Convention;
• award the loser the compensation of the winning compensation for moral and material damages, as well as legal costs.

However, the ECHR:

1. Does not cancel judicial decisions of national courts.
2. It does not instruct the legislature to bring domestic law into compliance with the Convention.
3. Does not exercise control over national legislation.
4. Does not monitor the implementation of decisions made.

In other words, a satisfied complaint to the ECHR does not mean that the national court will change the final decision. Over many years of practice, there have been almost no cases of non-enforcement of court decisions. The reasons are that the member states of the Council of Europe (CE) have voluntarily acceded to this organization and have signed the Convention.

Is Russia leaving the Council of Europe?

Recent events have shown that Russia can finally abandon its membership in the Council of Europe. The first time such thoughts were voiced after the Parliamentary Assembly of the Council of Europe (PACE) adopted a frank anti-Russian policy after the events related to Crimea and Ukraine. Several times, PACE deprived our representatives of the right to speak, and once did not invite our delegates to an important meeting that directly concerned our country.

The ECHR is the court of jurisdiction of the Council of Europe countries that have signed and ratified the Convention. Russia's withdrawal from the CE will actually mean that our country will cease to be under the jurisdiction of the Strasbourg court. In this case, no sample complaint to the ECHR will help our citizens defend their rights in an independent European court. However, the term “independent court” should be understood with caution.The so-called “Yukos affair” showed the political commitment of the ECHR, which led to significant changes in our legislation.

“The YUKOS affair - the beginning of a way out of the jurisdiction of the ECHR?

In 2004, a complaint was received by the ECHR from the shareholders of the Yukos oil company. In it, they demanded that Russia indemnify for damage from the illegal actions of the tax authorities, as well as from an illegal auction, in their view, of alienation from the company of its subsidiary Yuganskneftegaz. Russian authorities accused the company of dishonest privatization, tax evasion, and the creation of illegal fraudulent schemes. The actions of the tax authorities also left many questions. Everything was done in such a way that everyone understood: in fact, the state carried out a raider seizure of the company using the existing legal norms. From the point of view of legislation, the authorities did everything according to the law, however, the immoral component of this issue was striking. The arguments of Yukos also do not lend themselves to any moral assessment: "Yes, we did poorly, but we did everything that way." Approximately such words were repeated by the head of the company himself, Mikhail Khodorkovsky.

Representatives of Russia were confident in the victory, since formally the law was not violated. However, the ECHR does not consider the case in the plane of the national legislation of the CE member country. The decision is made on the basis of the provisions of the Convention.

On September 20, 2011, the ECHR partially admitted that the actions of the Russian tax authorities violated the article on the protection of property rights - article 1 of Protocol No. 1. However, the court did not see the political component of these processes. Moreover, Yukos representatives asked to consider the events from 2000 to 2003, and the court considered all the circumstances only until 2001.

Former Yukos shareholders went further and appealed the decision to the Grand Chamber of the ECHR. In 2012, a decision was made to refuse to review the Yukos case. Then, it seemed, Russia finally won in this matter. However, on July 31, 2014, an event took place that forced a complete review of our country's attitude to the European international legal system: the Arbitration Court in The Hague issued a decision according to which more than $ 40 billion was awarded to Yukos subsidiaries. Compensation of more than $ 8 billion should receive the company's pension fund.

After these events, the Constitutional Court of the Russian Federation informed that Russia will execute only those decisions of the ECHR that will comply with the Constitution of the Russian Federation. But this is not all: a law was signed that obliges all decisions of the ECHR with regard to Russia to “check” the Constitutional Court of the Russian Federation for legality and compliance with the provisions of the country's main law. Many international lawyers and experts have expressed the idea that "Russia will decide for itself what it will punish itself for and not." At the same time, there is no question of withdrawing from the CE, assuring senior Russian officials.

So, while our country has not completely rejected the decisions of the Strasbourg court, we will examine the question of how the complaint is filed with the ECHR.

Effective domestic remedies

The first thing you need to pay attention to before contacting Strasbourg is whether all the effective legal remedies within the state have been used. It follows that a complaint to the ECHR in a civil case, for example, should be sent only when all instances have been passed within the country. That is, it is futile to file a complaint with Strasbourg after the first instance. For each branch of law in the Russian Federation, there are nuances for applying to the ECHR.

Civil Affairs

So, before a complaint is sent to the ECHR in a civil case, it is necessary to go through all instances in accordance with procedural legislation. Current standards provide for the following steps:

1. The first instance is the district court.
2. The second is the appeal of the judicial board for civil cases of regional courts.
3. The third is cassation. It takes place in two stages. The first stage is considered in the Presidium of regional courts. The same judges sit on appeal and first cassation. The difference in the consideration lies only in the fact that in the first case they are understood directly in reality, and in the second - how the norms were understood or interpreted in the two previous instances. The second stage takes place in the Judicial Collegium of the Supreme Court of the Russian Federation (RF Armed Forces).
4. Fourth - a complaint to the Chairman of the RF Armed Forces if a refusal was received to transfer a cassation appeal for consideration; and a supervisory appeal to the Presidium of the Supreme Court of the Russian Federation, if the cassation appeal was examined at the Judicial Collegium of the RF Armed Forces.

Depending on the complexity of the case, the hierarchy of instances can be adjusted: the district court is an appeal to the magistrate court, and the Judicial Board of the RF Armed Forces can act as the first instance.

Now again, back to the issue of the effectiveness of domestic legal protection. Logically it can be assumed that after I saw the Russian complaints of the ECHR, consideration should be carried out only after decisions of all instances are attached to them. However, this is not so: the ECHR considers that the effectiveness of our legal system in civil cases ends immediately after the second appeal in the Judicial Collegium of the RF Armed Forces - this is a question about our legal system. This means that it is not necessary to submit complaints to the President of the RF Armed Forces and to the Presidium of the RF Armed Forces in the course of supervision before sending a complaint to the ECHR. However, in the absence of information about the second cassation in the RF Armed Forces, the complaint will not be considered in Strasbourg.

Criminal proceedings

Criminal cases in Russia are even more interesting: the Strasbourg court does not consider even cassation an effective legal defense. This decision was made after Russian law abolished the procedural deadlines for filing cassation appeals in criminal trials. Apparently, our deputies decided to leave controversial issues “for better times,” as modern statistics indicate that the number of cancellations of previous decisions in the cassation instance in criminal cases is close to zero.

A complaint to the ECHR in a criminal case should go through only the following “effective” stages of legal protection:

1. First instance.
2. The court of appeal.

In addition to the lack of “effective stages of internal defense”, there are other reasons why the Office of the ECHR will not even register requests:

1. Incorrectly filled out a complaint form at the ECHR.
2. Missed procedural deadlines.
3. The legal position in the complaint is based only on violations of domestic law without reference to violations of the Convention.

We will discuss these issues in more detail later in our article.

Procedural deadlines

The deadline for filing a complaint to the ECHR today is six months from the date of "exhaustion of effective domestic legal protection." On May 1, 2017, the President of Russia signed the Law on ratification of Protocol No. 15 amending the Convention. In addition to changes in the document, the deadlines for submitting a complaint to the ECHR were adjusted: they will soon be four months from the last “effective domestic legal” instance.

For example, the procedural deadlines for filing a complaint with the ECHR in criminal cases will expire after four months after the appeal, and in civil cases after cassation in the RF Armed Forces.

There is one important nuance here: despite the ratification of the Protocol by our country, the changes will come into force only after all 47 participating countries sign and ratify this document. And only three months after this, a new 4-month deadline for filing complaints will be applied. The protocol on changes was adopted 4 years ago, and as of May 2017, only 36 out of 47 participating countries (including Russia) had ratified it.The Federal Law on the ratification of the Protocol does not mean that Russia will begin to apply the 4-month deadline for filing complaints to the ECHR individually.

New form: complaint to the ECHR

In the Russian procedural legislation there is no concept of a “complaint form”. We only provide for the introduction of the necessary information, without which lawsuits, petitions or complaints will not be considered. In other words, we do not have obligatory technical requirements, for example, compulsory submission of printed versions in compliance with fonts, indents, etc. You can send a statement of claim even in handwritten form to the Russian court, and it will certainly be considered if its content complies with the law. However, to submit to Strasbourg a special complaint form is provided to the ECHR. Judging by the official statistics of the ECHR, almost a quarter of the complaints filed in 2014-2015 were not submitted on the form or it was filled out incorrectly, which led to the refusal to register them. Please note that from January 1, 2016 a new form is valid. All communicated complaints of the ECHR after 2016 were sent on new forms.

Eligibility criteria

One of the key concepts in the Strasbourg court is the admissibility of the complaint to the ECHR - compliance with the requirements. To find out on your own whether the complaint will be acceptable to the ECHR, you must positively answer the following questions:

1. Are there violations of the Convention?
2. Are violations committed by a member state of the Council of Europe?
3. Is there no abuse of the victim’s right?
4. Is there any violation by the state after it has signed the Convention?
5. Was the person in respect of whom the rules were violated under the jurisdiction of the respondent State?
6. Is a complaint made by a person with the right to do so?
7. Is a complaint filed after exhausting all effective domestic courts?
8. Are the deadlines for filing violated?
9. Is all the necessary information provided?
10. Has the victim made a similar complaint about these violations?
11. Is the complaint substantiated?
12. Did the applicant suffer significant damage from the violation?

Defendant

The defendant to the ECHR is always a member state of the Council of Europe. The status of “a complaint of the ECHR against Russia” is placed in any case initiated by a Russian citizen. The point is that the decision of the legal system as a whole is disputed, and not the actions of a particular subject.

The sample complaint to the ECHR in civil matters consists of two parts:

1. The circumstances of the case.
2. Violations of the applicant’s rights.

It is important to know that one of the typical mistakes in refusal to register a complaint with the secretariat is that the form itself does not contain a summary of the complaint, despite the full description of the circumstances of the case in the text itself.

It must be remembered that one successful example of a complaint to the ECHR does not protect against errors in repeated submissions. The Strasbourg court periodically publishes basic errors in filing complaints with the ECHR. We list them in the next paragraph.

Common mistakes in filing complaints with the ECHR

We will analyze the mistakes of the applicants, the assumptions of which lead to the fact that the court secretariat does not even register complaints:

1. The applicant violated the sample complaint of the ECHR, the complaint form is outdated.
2. There is no summary of the facts on the form itself. There is no information on the exhaustion of domestic remedies. We have already noted above that by this is meant not the passage of all existing instances of the Russian judicial system, but only the passage of the “effective” from the point of view of the Strasbourg court.
3. Copies of court decisions are not attached to the complaint.
4. The procedural deadlines for filing are violated.
5. The form does not contain a “live” signature of the applicant.
6. Lawyers and lawyers have not filled in the paragraphs that should contain detailed information about them.
7. The paragraph intended for a summary of violations has not been completed.
8. There is no list of applications, despite the fact that all the necessary documents are attached.
9. When re-filing a complaint, an incompletely filled out form with all attachments is filed, but only documents that were initially missing.

There may be other errors. We have cited only those that are the most common according to the European Court of Human Rights.

Convention

So, we have already noted above that the ECHR makes a decision solely on the basis of the Convention adopted on November 4, 1950 and its Protocols. Currently, 47 countries have ratified it, including Russia. Many convicts in Russia consider the sentences of our courts to be unjust, contrary to Russian law. However, they are mistaken in thinking that the ECHR will make a decision on the basis of Russian law. Even if our courts violated absolutely all the norms of the law of domestic law, but in a complaint to the ECHR their violations are not “tied” to the Convention, it is safe to say that such complaints will be left unsatisfied.

Almost all articles superficially enumerate fundamental rights and freedoms - the right to life, to freedom of expression, etc. Experienced lawyers always attach any trial to the Convention. “Duty” is considered to be Article 6 of the Convention. It implies that decisions of internal courts should be based solely on law. It refers to domestic law. If the applicant considers the rule of law to be unfair and cruel, this will not be the basis for filing a complaint with the ECHR. However, if a person was given a court decision contrary to the current domestic standards of justice, then in this case it is worth contacting the ECHR.

Russian practice in the ECHR

Russian President Vladimir Putin during a speech in the State Duma in August 2014 - after the Yukos affair - spoke out that Russia was ready to leave the jurisdiction of the ECHR. Our country is really developing rather complicated relations with this court. In 2013, we took first place in the number of complaints submitted by our citizens to the ECHR. Then the Strasbourg court examined more than 24 thousand complaints against Russia, of which 99% - 23,845 - declared inadmissible. And only 257 complaints were to be satisfied. 119 decisions related to the violation of human rights and freedoms - in this indicator we were the first.

Why is the ECHR for Russia?

Many Russian patriots argue that we definitely need to leave the Council of Europe and from the jurisdiction of the ECHR. However, many lawyers and political scientists agree that this should not be done. Sometimes the ECHR is the only “pit stop” of Russian legal nihilism. Our legal system, to put it mildly, leaves much to be desired. Membership in the Council of Europe also means that Russia adopted the 1948 Universal Declaration of Human Rights. It also allows for the conduct of judicial practice and the country's legislation in accordance with international standards. It should also be noted that the ECHR is the last resort to achieve justice for our citizens.

Despite the fact that Russia reserves the right not to comply with the judgments of the ECHR, as a rule, the verdicts of Russian courts are revised due to “newly discovered circumstances” if decisions are made in Strasbourg on violation of the Convention.