Grand entrance

As the Human Rights Act has been in place for a year and some commentators have suggested that the domestic courts are overly cautious in their interpretation of the European Convention on Human Rights, it is time to think again about applications to the European Court of Human Rights (ECHR).

Making an applicationThe procedure for making an application to the Strasbourg court is straightforward.

However, it is not a speedy process, taking five years or so, and the delays are undoubtedly exacerbated by the many complaints that do not fall within the ambit of the convention or do not comply with its requirements, and which are rejected at the early stages.Applications are initially allocated to a chamber of the court which will decide whether the application is admissible.

Inadmissible and unmeritorious cases will be sifted out by committees of three judges.

In fact, more than 95% of cases never make it past this stage.Therefore, it is crucially important to ensure that applications comply with the admissibility requirements and that they contain all the facts and arguments of law necessary to succeed.

Unlike cases in the UK courts, the decision to allow a case to continue is made on the basis of the papers alone.

If a case is declared inadmissible there is no right of appeal, there are no additional steps that can be taken, and no further applications can be made concerning the same facts.If the case is not declared inadmissible at this stage, it will be 'communicated' to the government, which will then make its 'observations'.

The applicant will be given a chance to respond in writing to these observations.

Sometimes the court will allow supplementary observations and responses.

The court will set time limits for these processes, and after they are complete the court will reconsider whether or not to declare the case inadmissible.

If the case is declared admissible, the parties file additional submissions known as 'memorials'.

Such submissions must set out the case as a whole.

There may then be a hearing, though often this is dispensed with and cases are decided on the basis of the papers alone.The UK's legal aid scheme does not generally cover complaints to the court.

Limited legal aid may be provided by the court but only towards the end of the examination of admissibility (after the case has been communicated).

However, legal costs are recoverable where a complaint is successful, though the court will not award costs at anything like the rate that might be paid in a domestic legal aid case.

On a positive note, there are no fees payable to the court and there is no liability to meet the costs of the government.Applications must be made within six months after having exhausted any remedies in the domestic courts.

There is an application form to complete, but sending a letter setting out the basic facts and all the relevant convention articles within six months will be sufficient.

The court will then send an application form and automatically give another six weeks for its completion.

Referral to the grand chamberIf the ECHR declares the case admissible and goes on to give a substantive judgment, there is a slim chance that the case can be appealed.

The possibility of an appeal is available to both parties.

The original structure of the European Commission and the ECHR provided for a two-stage process, and the Commission acted as a filter mechanism to the large number of cases being taken to Strasbourg.

The effect of protocol 11, which came into force in November 1998, was to abolish the Commission's involvement and allow the court to deal with admissibility.

Most cases that get through the admissibility stage are heard and decided by a chamber of seven judges.In the process of reorganising the Commission and the court, some of those countries involved in drafting protocol 11 were concerned that an appeal mechanism should be created.

The introduction of the rehearing process represented a political compromise by the convention member states.

It was thought the procedure for referrals for rehearing would allow a respondent government, in very 'controversial' cases, to have a second attempt at trying to persuade the court of the merits of its position.The restructuring of the court has created another important mechanism.

The chamber of seven judges can now relinquish jurisdiction in favour of the grand chamber of 17 judges if a case 'raises a serious question affecting the interpretation of the convention...

or where the resolution of a question before the chamber might have a result inconsistent with a judgment previously delivered by the court'.

It may be tactical to request jurisdiction to be relinquished in cases where a recent chamber decision has been made in another case which is not in your favour.Parties may also seek revision of the court's judgment if a decisive new fact is discovered.

The request must be made within six months of the fact becoming known to the party.

Request for referral to the grand chamberAn appeal is only possible if a judgment has been given by a chamber of the court.

No appeal is possible where the original judgment is given by the grand chamber.

A request for a referral to the grand chamber must be completed in writing within a period of three months from the date of delivery of the judgment of the chamber.

The request is made to a panel of five judges of the grand chamber.

If the panel accepts the request, the grand chamber shall decide the case by means of judgment.

Article 43(2) states that a referral to the grand chamber shall be accepted 'if the case raises a serious question the interpretation or application of the convention...

or a serious issue of general importance'.The Strasbourg court has provided an explanatory report to protocol 11, which states: 'Serious questions affecting the interpretation of the convention are raised when a question of importance not yet decided by the court is at stake or when the decision is of importance for future cases and for the development of the court's case law.

Moreover, a serious question concerning the application of the convention may be at stake when a judgment concerned is not consistent with a previous judgment of the court.'A serious question concerning the application of the convention may be at stake when a judgment necessitates a substantial change to national law or administrative practice but does not itself raise a serious question of interpretation of the convention.'A serious issue considered to be of general importance could involve a substantial political issue or an important issue of policy' (paragraphs 100-102).Reasons need not be given by the panel for a refusal of the request for referral.

Applications for referral made under article 43It is difficult to assess the Strasbourg court's approach to applications made so far under article 43.

It is clear that the court requires the party making the request to specify 'the serious question affecting the interpretation or application of the convention...

or the serious issue of general importance' and that the five judges will 'examine the request solely on the basis of the existing case file'.

It is also emphasised that rehearing of cases will only take place in exceptional circumstances.

As no reasons need to be given for rejecting a request for referral, the only way to ascertain the court's approach is by considering the judgments of the successful and unsuccessful cases.

It appears that there has so far only been one successful case that has reached a judgment, K and T v Finland, 25702/94 12 July 2001.

The request for referral in this case was made by the state party and the judgment of the grand chamber appears to have agreed with the decision of the chamber.

Little other information about the process can be gleaned from the case.In relation to the UK, the first request seems to have been made in the important case of Khan v UK, The Times, 23 May 2000.

The request by the applicant was rejected.

Khan concerned the admissibility of evidence from a listening device used illegally and in contravention of article 6 of the convention.

The case had been considered by the House of Lords and involved a challenge to accepted convention law.As far as can be ascertained, the only case against the UK that has obtained consent for a referral is Kingsley v UK, 35605/97 7 November 2000.

This case concerned the revocation of a licence for a casino.

The applicant successfully argued that the Gaming Board's hearing of the revocation of the licence did not comply with article 6 because members of the panel had taken part in another meeting of the board, which had already formed the opinion that the applicant was not a 'fit and proper person'.

The request for referral was based on a consideration of article 41 of the convention, the court's award of damages for just satisfaction.The applicant asked for 4 million to cover alleged losses, but the court refused, saying that it 'cannot speculate about the outcome of the domestic proceedings had those proceedings been in conformity with article 6(1) of the convention.

In any event...

no causal link has been established between the violation found and the damage claimed'.John Wadham is a solicitor and director of Liberty, and Kate Aubrey-Johnson is a trainee barrister