Taking a Case to the European Court of Human Rights

by Philip Leach

Overview

This book provides comprehensive coverage of the law and procedure of the European Court of Human Rights. It incorporates a step-by-step approach to the litigation process, covering areas such as lodging the initial application, seeking priority treatment, friendly settlement, the pilot judgment procedure, just satisfaction, enforcement of judgments, and Grand Chamber referrals. This new edition has been fully revised to take account of the latest developments in the Court's practice since 2010, including: the introduction (in 2014) of a mandatory application form; the updated Court Rules and practice directions; a more expansive approach to interim measures; the application of the 'no significant disadvantage' admissibility test and further applications of the exhaustion of domestic remedies rule and the six months' time limit; the steep rise in the use of unilateral declarations in striking cases out; developments in the use of 'Article 46' and pilot judgments; and the more extensive application of non-pecuniary measures of redress (including reinstatement to employment, disclosure of information and the protection of witnesses). This edition includes an expanded and up-to-date article-by-article commentary on the substantive law of the European Convention. Issues covered by the recent case-law include secret rendition, restrictions on in vitro fertilization, medical mistreatment, the treatment of migrants at sea and asylum procedures, states' extra-territorial jurisdiction, same-sex partnerships, and discrimination. There is new law on the rights of suspects, defendants and life sentence prisoners, and the duties owed to the victims of domestic violence, domestic servitude, and human trafficking. With such vast coverage and accessibility, this book is indispensable for anyone studying in this field.

Product Details

ISBN-13:	9780191071768
Publisher:	OUP Oxford
Publication date:	07/03/2017
Sold by:	Barnes & Noble
Format:	eBook
Pages:	687
Sales rank:	853,513
File size:	4 MB

About the Author

Philip Leach is a solicitor and Professor of Human Rights at London Metropolitan University. He is the Director of the European Human Rights Advocacy Centre (EHRAC), based at London Metropolitan University. He is a member of the Editorial Board of European Human Rights Law Review and, in 2009, was appointed to the Independent Advisory Panel on Deaths in Custody.

Table of Contents

	Foreword	xi
	Preface	xiii
	Acknowledgements	xv
	Table of Cases	xvii
	Table of International Instruments	li
	Table of International Rules	lv
	Table of Primary Legislation	lvii
	Table of Secondary Legislation	lx
1	Introduction: The Council of Europe and the European Convention on Human Rights	1
1.1	The Council of Europe: Origins and Principal Bodies	1
1.2	The European Convention on Human Rights	5
1.3	The European Court of Human Rights	13
2	Practice and Procedure of the European Court: Pre-admissibility	19
2.1	Lodging the Application with the Court	19
2.2	Costs, Legal Aid and Fees	25
2.3	Getting Assistance	27
2.4	Opening of the Case File	32
2.5	Procedure Leading to Admissibility	46
2.6	Third Party Intervention	55
3	Practice and Procedure of the European Court: Post-admissibility	62
3.1	Establishing the Facts	62
3.2	Friendly Settlement	71
3.3	Striking Out	77
3.4	Final Submissions Post-admissibility	81
3.5	Oral Hearing	84
4	Practice and Procedure of the European Court: Judgment and Enforcement	88
4.1	Delivery of Judgment	88
4.2	Referral to the Grand Chamber	90
4.3	Interpretation of Judgment	91
4.4	Revision of Judgment	92
4.5	Enforcement of Judgments	94
5	Admissibility Criteria	113
5.1	Introduction	113
5.2	Capacity and Standing-Who may Petition the Court?	114
5.3	Who can Claim to be a Victim?	124
5.4	Exhaustion of Domestic Remedies	134
5.5	Six-month Time Limit	146
5.6	Anonymous Applications	152
5.7	Applications Substantially the Same as a Matter which has Already been Examined by the Court	152
5.8	Applications Already Submitted to Another Procedure of International Investigation or Settlement	153
5.9	Incompatibility with the Provisions of the Convention	154
5.10	Manifestly Ill-founded	159
5.11	Abuse of the Right of Application	160
6	Underlying Convention Principles	161
6.1	Introduction	161
6.2	Subsidiarity	161
6.3	A Democratic Society	161
6.4	Legal Certainty	162
6.5	Proportionality	163
6.6	Margin of Appreciation	163
6.7	The Convention as a 'Living Instrument'	164
6.8	Absence of Doctrine of Precedent	165
6.9	Practical and Effective Rights	165
6.10	Autonomous Concepts	165
6.11	Positive Obligations	166
6.12	Restrictions on Rights	167
6.13	Prohibition of Abuse of Rights	169
6.14	Interpretation of the Scope of Substantive Rights	171
6.15	Irrelevance of a State's Resources	171
6.16	Interpretation in Accordance with the Vienna Convention	172
6.17	Interpretation in Accordance with International Law	172
6.18	Interpretation in the Light of the 'Travaux Preparatoires'	173
6.19	Issues Considered by the Court of its Own Motion	173
6.20	Inability to Consider Cases in the Abstract	174
6.21	Rules of Evidence and Burden of Proof	174
6.22	The Effective Exercise of the Right of Application	175
7	The Substantive Rights of the European Convention	179
7.1	Article 1: Obligation to Respect Human Rights	179
7.2	Article 2: The Right to Life	183
7.3	Article 3: Prohibition of Torture and Inhuman or Degrading Treatment	201
7.4	Article 4: Prohibition of Slavery and Forced Labour	218
7.5	Article 5: Right to Liberty and Security of the Person	220
7.6	Article 6: The Right to a Fair Hearing	241
7.7	Article 7: No Punishment Without Law	278
7.8	Overview of Articles 8 to 11	281
7.9	Article 8: The Right to Respect for Private and Family Life, Home and Correspondence	284
7.10	Article 9: Freedom of Thought, Conscience and Religion	316
7.11	Article 10: Freedom of Expression	320
7.12	Article 11: Freedom of Peaceful Assembly and Association	331
7.13	Article 12: Right to Marry	340
7.14	Article 13: Right to an Effective Remedy	341
7.15	Article 14: Prohibition of Discrimination	346
7.16	Article 1 of Protocol No. 1: Right of Property	353
7.17	Article 2 of Protocol No. 1: Right to Education	364
7.18	Article 3 of Protocol No. 1: Right to Free Elections	366
7.19	Article 1 of Protocol No. 4: Prohibition of Imprisonment for Debt	370
7.20	Article 2 of Protocol No. 4: Freedom of Movement	370
7.21	Article 3 of Protocol No. 4: Prohibition of Expulsion of Nationals	374
7.22	Article 4 of Protocol No. 4: Prohibition of Collective Expulsion of Aliens	375
7.23	Articles 1 and 2 of Protocol No. 6; Article 1 of Protocol No. 13: Abolition of the Death Penalty	377
7.24	Article 1 of Protocol No. 7: Procedural Safeguards Relating to Expulsion of Aliens	378
7.25	Article 2 of Protocol No. 7: Right of Appeal in Criminal Matters	381
7.26	Article 3 of Protocol No. 7: Compensation for Wrongful Conviction	382
7.27	Article 4 of Protocol No. 7: Right Not to be Tried or Punished Twice	383
7.28	Article 5 of Protocol No. 7: Equality between Spouses	386
8	Derogation and Reservation	389
8.1	Derogation	389
8.2	Reservation	394
9	Just Satisfaction (Article 41)	397
9.1	Introduction	397
9.2	Pecuniary and Non-pecuniary Compensation	398
9.3	Restitution of Property	405
9.4	Release of a Person Unlawfully Detained	407
9.5	Costs and Expenses	407
9.6	Schedule of Article 41 Awards in Selected European Court Judgments (2001-2004)	409
10	Strengthening the Prohibition of Discrimination: Protocol No. 12	456
11	Case Study: Peck v UK	459
12	Sources of Information on the European Convention on Human Rights	465
12.1	Law Reports	465
12.2	Websites and Online Sources	466
12.3	Council of Europe Publications	467
12.4	Journals	467
12.5	Select Bibliography	468
	Appendices
Appendix 1	Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No. 11 (with Protocol Nos 1, 4, 6, 7, 12 and 13)	471
Appendix 2	Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention, 13 May 2004	503
Appendix 3	Rules of Court (including Practice Directions) (November 2003)	511
Appendix 4	Application form	564
Appendix 5	Form of authority	572
Appendix 6	Court acknowledgment letter	574
Appendix 7	Rule 36 form of appointment of representative	576
Appendix 8	Declaration of applicant's means	579
Appendix 9	Committee decision letter	581
Appendix 10	Legal aid rates (applicable as from 1 February 2005)	583
Appendix 11	National authorities competent to certify the indigence of applicants for the purposes of Rule 93 of Chapter X of the Rules of Court	584
Appendix 12	Notes for the guidance of persons appearing at hearings before the European Court of Human Rights	587
Appendix 13	Table of dates of entry into force of the Convention and its Protocols	590
Appendix 14	Composition of the Court (and Sections)	592
Appendix 15	Rules adopted by the Committee of Ministers for the application of Article 46, paragraph 2 of the European Convention on Human Rights, 10 January 2001	595
Appendix 16	European Agreement relating to persons participating in proceedings of the European Court of Human Rights, 5 March 1996	598
Appendix 17	Conditional fee agreement (England & Wales)	603
Appendix 18	Vienna Convention on the Law of Treaties (Articles 31-33)	610
Appendix 19	Recommendation No. R(2000)2 of the Committee of Ministers on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights, 19 January 2000	612
Appendix 20	Resolution Res(2004)3 of the Committee of Ministers on judgments revealing an underlying systemic problem, 12 May 2004	614
Appendix 21	Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies, 12 May 2004	616
Appendix 22	Peck v UK: Application under Article 34, 17 November 1998	624
Appendix 23	Peck v UK: Government's Observations on the admissibility and merits, 29 February 2000	649
Appendix 24	Peck v UK: Applicant's Further Observations, 18 May 2000	677
Appendix 25	Third Party intervention of the International Commission of Jurists (ICJ) in Mamatkulov and Abdurasulovic v Turkey	693
Appendix 26	Third Party intervention of Liberty and the Trades Union Congress in Wilson, National Union of Journalists and Others v UK, 5 January 2001	704
Appendix 27	Third Party intervention of Liberty in Goodwin v UK, I v UK, 16 January 2002	716
Appendix 28	Third Party intervention of ILGA-EUROPE, Liberty and Stonewall in Karner v Austria, 12 March 2002	729
Appendix 29	Third Party intervention of OSCE Mission to Bosnia and Herzegovina in Blecic v Croatia	742
Appendix 30	Third Party intervention of Interights in MC v Bulgaria, 12 April 2003	759
Appendix 31	Yoyler v Turkey: Applicant's map of his village (used during the fact-finding hearing)	770
Appendix 32	Kalashnikov v Russia: Committee of Ministers Interim Resolution ResDH(2003)123, 4 June 2003	772
	Index	777