Proceedings against public bodies
Someone who believes that a public authority has breached their Convention
rights, or is proposing to, can bring court proceedings against the
public authority. A person can also raise a breach of their Convention
rights as a defence in any court proceedings against them. In either
case the person must be a ‘victim’ of the breach or potential
breach, that is, someone who is directly affected by it. This is a requirement
that has its origins in ECHR caselaw.
Generally,
a person bringing court proceedings against a public authority under
the HRA will be seeking a declaration that the public authority has
breached their Convention rights or is proposing to do so. If the breach
is continuing they will also want an order that the public authority
should stop acting in a way that breaches their Convention rights. They
may also seek compensation, although the courts have made it clear that
it is not always appropriate for them to award this.
When
someone brings proceedings against a public authority for breach of
their Convention rights, the public authority may be able to defend
itself by saying that it had no choice but to act in the way that it
did because it was required to do so by an Act of Parliament. Where
this happens the most the person bringing the case may hope to achieve
is a declaration of incompatibility.
In
most cases the appropriate court proceedings to bring against a public
authority under the HRA will be an application for judicial review.
Court rules require an application for judicial review to be brought
‘promptly’ and in any event within three months of the decision
or action being challenged. Where someone does not make an application
for judicial review there is a one year time limit for starting proceedings.
Proceedings
Against Private Individuals or Bodies
As private bodies
and individuals are not required by the HRA to respect Convention rights,
it is not possible to take proceedings under the HRA against them. This
does not mean, however, that the HRA will not have an effect on court
proceedings between private bodies or individuals. This is because the
courts themselves are public authorities under the HRA and are also
required to interpret existing laws and to develop the law in a way
that is compatible with Convention rights.
Taking
a case to the European Court of Human Rights
Even though the HRA has now come into force in the UK it is still possible
to make an application to the ECHR. There are three key requirements
that you must meet:
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You
must be a victim of a violation of one or more of the articles of
the Convention. Generally, this means you must be directly affected
by a breach of the Convention. In some cases it will be enough to
show you are likely to be affected by a breach or that you belong
to a group of people, some of whom are likely to be affected. For
example, gay men were permitted to challenge laws that criminalized
gay sex even though it was unlikely that the individual applicants
would ever be prosecuted because the laws were rarely enforced.
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Before
you make an application to the ECHR you must pursue any proceedings
that you could take in the UK that are capable of providing you
with an adequate remedy for the breach of your Convention rights.
Now that the HRA is in force this will generally mean that you will
have to take proceedings in the UK under the HRA. This may not be
necessary, however, where it is clear that the best you could hope
to achieve from taking proceedings under the HRA is a declaration
of incompatibility.
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You
must make your application to the ECHR within six months of the
conclusion of any court proceedings that you have taken in the UK
that could have provided you with a remedy or, if there were no
proceedings that it was reasonable to expect you to take, within
six months of the event which gives rise to your application.
When
you make an application to the ECHR you will be asked to complete one
of the ECHR’s application forms. However, it is not necessary
to fill out one of these forms to meet the six month rule. All you need
to do is to get a letter to the court within the six months setting
out:
1.
Your details (name, address and nationality).
2. The country against which you are making your application.
3. The facts that have given rise to your application.
4. The article or articles of the Convention that you say have been
breached.
You
should send your letter to:
The
Registrar
European Court of Human Rights
Council of Europe
F-67075 Strasbourg Cedex
France
Fax: 00 33 3 88 41 27 30
When
it has received your letter the ECHR will send you one of its application
forms to complete. If there is not enough space on the form you can
set out your case in a longer document which you attach to the form.
It is important that you submit your completed application form within
any deadline set by the ECHR or, if no deadline is set, within a few
weeks of receiving it. If you do not submit the form speedily you run
the risk that the ECHR will decide that you have not met the six month
deadline. If you cannot meet any deadline that is set you should contact
the ECHR and try to agree an extended deadline.
Once
the ECHR has acknowledged receipt of your application form it may be
some time (months if not years) before you hear anything further.
At
this stage the ECHR may rule your application inadmissible. The ECHR
will not give reasons and there is no right of appeal. If your application
is ruled inadmissible you will not be able to proceed with it.
If
it is not ruled inadmissible at this stage, your application will be
allocated to one of the ECHR’s four sections. A panel of seven
judges from that section will deal with the case. This panel will always
include the judge appointed by the United Kingdom. Very significant
cases may be dealt with by the ECHR’s Grand Chamber. These cases
are considered by a panel of seventeen judges. A case could be transferred
to the Grand Chamber at any stage in the proceedings.
Your
application will also be communicated to the Government at this stage,
that is, the Government will be informed that you have made an application
and will be invited to respond. You will be given an opportunity to
respond to the Government’s observations and there may be further
exchanges of written representations.
The
ECHR will then decide whether your application is admissible. It can
rule your application inadmissible if you have failed to meet one of
the three requirements set out above or if the ECHR considers that it
is ‘manifestly ill-founded’, in other words, that is not
arguable. If the ECHR finds your application inadmissible at this stage
it will give reasons, but there is no right of appeal.
If
the ECHR finds your application admissible it will then go on to decide
whether there has been a breach of the Convention. The ECHR usually
refers to this as considering the merits of the application. At this
point you have the right to put in a claim for compensation. The ECHR
calls this ‘just satisfaction’. It should include a claim
for legal expenses if you have incurred any. Your claim for just satisfaction
should be sent to the ECHR within two months of the ECHR finding your
application admissible. Both sides may make further representations
before the ECHR decides on the merits of the application.
When
the ECHR has made its decision on the merits of your application, you
will be notified of the date on which its judgment will be made public.
The judgment will be published on the ECHR’s website on that day.
If the ECHR finds that there has been a breach of your rights it may
award you compensation although it does not always do so on the basis
that its finding that there has been a breach of your rights is enough.
Once
a section of the ECHR has made a final decision on the merits of an
application, either party, the Government or the Applicant, can ask
to have the application referred to the Grand Chamber. This is the only
form of appeal that the ECHR's rules allow for. The Grand Chamber
only rarely agrees to a referral. There is no appeal from a final decision
made by the Grand Chamber.
Hearings
The
ECHR deals with most cases without holding a hearing; it reaches its
decisions on the basis of written representations made by the parties.
When the ECHR does decide to hold a hearing this will usually take place
before the ECHR has decided on the admissibility of the application,
although it may also hold a hearing after an application has been found
admissible if it has not already held one.
Legal
representation
Although
you can make an application to the ECHR yourself, it would be wise to
get a lawyer experienced in ECHR proceedings to represent you. Most
cases are not communicated to the Government (i.e. they are ruled inadmissible
at an early stage) and having a lawyer present your arguments for you
may help you get over this hurdle.
If
the ECHR decides to hold a hearing after it has found your application
admissible, the ECHR rules require you to be represented by a lawyer
at that hearing unless the ECHR allows otherwise.
Legal
Aid
The
ECHR has a system of legal aid although the payments which a lawyer
receives under the scheme are very low. You can apply for legal aid
once your application has been communicated to the Government. It is
particularly useful to have legal aid if the ECHR holds a hearing on
your case, as legal aid will pay the cost of your and your lawyer’s
trip to Strasbourg. Eligibility for legal aid will depend on the Legal
Services Commission accepting that you would be eligible for legal aid
in this country.
If
you are not eligible for legal aid, your lawyer may agree to represent
you under a conditional fee agreement, that is, on the basis that they
will only get paid if you win your case and get your legal costs paid
by the Government. However, as very few applications to the ECHR are
successful, your lawyer may be reluctant to take this risk. If you lose
your case there is no possibility of you being ordered to pay the Government’s
legal costs.
