Representation Before the European Court of Human Rights

The European Court of Human Rights, often referred to as the Strasbourg Court, examines applications concerning alleged violations by a state of rights protected under the European Convention on Human Rights.

An application may be submitted to the Strasbourg Court only if specific legal requirements are satisfied. It is necessary to assess whether a Convention right has been violated, whether the effective legal remedies available in Georgia have been used, and whether the time limit for applying to the Court has been observed.

Avtandil Giorgadze prepares applications to the European Court of Human Rights and represents applicants, including in cases concerning criminal proceedings, unlawful arrest, detention, ill-treatment, the right to a fair trial, extradition, and the rights of convicted persons.

What Does the European Court of Human Rights Examine?

The European Court of Human Rights determines whether a state has violated a right protected by the European Convention on Human Rights or its additional Protocols.

An application may concern:

• a violation of the right to life;
• torture or inhuman or degrading treatment;
• unlawful arrest or detention;
• inadequate conditions of detention;
• a violation of the right to a fair trial;
• a violation of the presumption of innocence;
• restrictions on the right to a defense;
• a violation of the right to respect for private and family life;
• restrictions on freedom of expression;
• a violation of property rights;
• the absence of an effective legal remedy;
• discrimination;
• a real risk of a serious human rights violation resulting from extradition or expulsion;
• a violation of another right protected by the Convention.

The Court assesses not only whether there was state interference but also whether that interference was lawful, necessary, and proportionate.

Who May Apply to the Strasbourg Court?

An application to the European Court of Human Rights may be submitted by:

• an individual;
• a non-governmental organization;
• a group of individuals;
• another applicant where permitted by law.

The applicant must claim to have been directly affected by an act or omission of the state. As a rule, applying merely in the general interest to protect another person’s rights is not sufficient.

An application is lodged against a state, not against a judge, prosecutor, investigator, private company, or individual citizen.

The Strasbourg Court Is Not a Fourth-Instance Court

The European Court of Human Rights is not an additional appellate or cassation court above the Georgian courts.

As a rule, the Strasbourg Court:

• does not rehear the criminal case;
• does not determine whether a person is guilty or innocent;
• does not modify a decision of a Georgian court;
• does not annul a domestic judgment;
• does not examine only whether a domestic court correctly interpreted Georgian law;
• does not examine an application merely because the applicant disagrees with the outcome reached by the domestic court.

The application must substantiate a violation of a specific Convention right, rather than merely alleging that the domestic court’s decision was unlawful or unfair.

Admissibility Requirements for an Application to the Strasbourg Court

Before preparing an application, it is necessary to verify compliance with the Court’s admissibility requirements.

It is particularly important that:

• the applicant has victim status in relation to the alleged violation;
• the application concerns a right protected by the Convention or its Protocols;
• the alleged violation is attributable to the state;
• the effective legal remedies available in Georgia have been exhausted;
• the application is submitted within the prescribed time limit;
• the application is not anonymous;
• the same matter has not already been examined by the Court without a relevant legal basis for reconsideration;
• the application is not manifestly ill-founded;
• the Court’s formal requirements have been observed.

Failure to satisfy even one requirement may result in the application not being examined.

Exhaustion of Domestic Remedies

Before applying to the Strasbourg Court, an applicant must generally use the effective legal remedies available in Georgia.

Depending on the case, this may include:

• pursuing proceedings before a court of first instance;
• filing an appeal;
• filing a cassation appeal where it is regarded as an effective legal remedy;
• challenging detention or another decision;
• using an appropriate administrative or judicial procedure;
• promptly reporting the violation to the competent authority.

It is important that the position presented at the domestic level includes, in substance, the same facts and human rights complaint that the applicant intends to raise subsequently before the Strasbourg Court.

Time Limit for Applying to the Strasbourg Court

The general time limit for applying to the European Court of Human Rights is four months from the date of the final domestic decision.

When determining the beginning of this period, it is necessary to establish:

• which decision is final in the case;
• when the applicant or their lawyer became aware of the decision;
• whether another effective remedy was available;
• whether domestic legal procedures were used correctly;
• whether the application sent to the Court satisfies the formal requirements.

Sending the Court an incomplete letter or only general information may not be sufficient to comply with the time limit. The assessment of the case and preparation of the application should therefore begin as soon as the final decision is issued.

Preparing the Application

An application to the European Court of Human Rights must be prepared using the Court’s official application form and must contain the required information and documents.

The application must include:

• information about the applicant;
• the act or omission attributable to the state;
• the factual circumstances of the case;
• the course of the domestic proceedings;
• the legal remedies used;
• the date of the final decision;
• the provisions of the Convention allegedly violated;
• the legal basis for each alleged violation;
• compliance with the admissibility requirements;
• an accurate list of the attached documents;
• the required signatures of the applicant and representative.

The facts must be presented accurately, coherently, and with supporting documentation.

What Documents Are Required?

Depending on the case, the following may be required:

• the judgment of the court of first instance;
• appellate and cassation decisions;
• appeals submitted to the domestic courts;
• decisions concerning arrest and detention;
• relevant materials from the criminal case;
• minutes or recordings of hearings;
• medical documents;
• expert reports;
• photographs showing injuries;
• applications, complaints, and the responses received;
• other evidence demonstrating a violation of the person’s rights;
• documents required for representation.

The materials submitted to the Court must be directly relevant to the application and must be properly organized and identified.

Violation of the Right to a Fair Trial

In a criminal case, an application to the Strasbourg Court may be based on a violation of the right to a fair trial that had a substantial impact on the overall fairness of the proceedings.

The following may be assessed:

• restrictions on access to a lawyer;
• insufficient time or facilities to prepare the defense;
• unjustified rejection of important defense evidence;
• restrictions on the right to examine a witness;
• a violation of equality of arms;
• concerns regarding the independence or impartiality of the court;
• the use of unlawfully obtained evidence;
• the use of statements obtained under coercion;
• insufficient reasoning in the judgment;
• a violation of the presumption of innocence;
• unjustified delays in the proceedings;
• another circumstance affecting the overall fairness of the proceedings.

The Strasbourg Court does not always assess each individual defect in isolation. The decisive issue is often whether the proceedings, considered as a whole, were fair.

Unlawful Arrest and Detention

Article 5 of the Convention protects the right to liberty and security.

An application may concern:

• the absence of a legal basis for the arrest;
• failure to promptly inform the person of the reason for the arrest;
• delayed appearance before a judge;
• the unjustified use of detention;
• the extension of detention using formulaic reasoning;
• failure to assess individual procedural risks;
• an ineffective procedure for challenging detention;
• delayed enforcement of a release decision;
• another violation of the right to liberty.

The mere fact that a domestic court ordered detention does not automatically establish a violation of the Convention. A specific assessment of the decisions and the entire period of detention is required.

Torture and Ill-Treatment

Article 3 of the Convention absolutely prohibits torture and inhuman or degrading treatment or punishment.

An application may concern:

• physical or psychological violence by the police;
• obtaining statements through coercion;
• the use of excessive force during arrest;
• ill-treatment in a penitentiary institution;
• severe conditions of detention;
• failure to provide adequate medical care;
• failure to protect a person from a real risk;
• ineffective investigation of an allegation of violence;
• failure to address a suicide risk known to the state authorities.

In such cases, it is important to document injuries and other circumstances immediately, obtain medical records, and promptly apply to the relevant authorities.

Extradition, Expulsion, and Human Rights

An application to the European Court of Human Rights may become necessary if a person’s extradition or expulsion creates:

• a real risk of torture or inhuman treatment;
• a risk to the person’s life;
• a risk of a serious and irreversible deterioration in health;
• an exceptional risk of a flagrantly unfair trial;
• a risk of a serious and disproportionate violation of private or family life;
• a real risk of a violation of another right protected by the Convention.

The risk must be specific, real, and individually substantiated. Referring only to general problems in a foreign state may not be sufficient.

Interim Measures — Rule 39 of the Rules of Court

In exceptional and urgent cases, an application for an interim measure may be submitted to the European Court of Human Rights.

An interim measure under Rule 39 may be important where there is an imminent risk of serious and irreparable harm, including in cases involving:

• extradition;
• expulsion;
• surrender to a foreign state;
• a life-threatening condition;
• a real risk of ill-treatment.

An interim measure:

• is applied only in exceptional cases;
• is not an ordinary appeal against a domestic decision;
• requires a clear demonstration of urgency;
• requires the submission of specific and reliable evidence;
• must be requested before the person is surrendered or the risk materializes.

Submitting a request under Rule 39 does not automatically suspend an extradition or expulsion. The process is suspended only if the Court decides to indicate an interim measure.

Communication of the Application to the State

If the Court accepts the application for further examination, it may communicate the case to the Government of Georgia and ask specific legal questions.

Following communication:

• the state submits written observations;
• the applicant is given an opportunity to respond to the Government’s observations;
• the possibility of resolving the case through a friendly settlement may be considered;
• the applicant may submit a claim for just satisfaction;
• the Court assesses the factual and legal circumstances of the case;
• a judgment or decision is ultimately issued.

When corresponding with the Court, the established deadlines and procedural requirements must be followed precisely.

Just Satisfaction

If the European Court of Human Rights finds a violation of the Convention, it may award just satisfaction to the applicant.

The claim may include:

• compensation for pecuniary damage;
• compensation for non-pecuniary damage;
• reimbursement of costs and expenses related to the proceedings.

The amount claimed must be substantiated and, where necessary, supported by relevant documents. A finding of a violation does not always mean that the full amount claimed will be awarded.

Enforcement of the Court’s Judgment

A final judgment of the European Court of Human Rights is binding on the state.

Its enforcement may include:

• payment of the amount awarded by the Court;
• implementation of individual measures in relation to the applicant;
• adoption of general measures to prevent similar violations;
• consideration of reopening the legal proceedings where relevant grounds exist under domestic law.

The Committee of Ministers of the Council of Europe supervises the execution of judgments.

What Does Representation Before the European Court of Human Rights Include?

The lawyer’s services include:

• an initial assessment of the admissibility of the case;
• identification of the Convention rights allegedly violated;
• verification of the exhaustion of domestic remedies;
• calculation of the four-month time limit;
• examination of the domestic courts’ decisions;
• collection of the necessary documents and evidence;
• preparation of the Court’s official application form;
• formulation of the facts and legal arguments;
• submission of the application to the Court;
• subsequent written communication with the Court;
• preparation of a request for an interim measure;
• preparation of a response to the Government’s written observations;
• substantiation of a claim for just satisfaction;
• assessment of a friendly-settlement proposal;
• representation of the applicant at the relevant stages of the proceedings;
• assessment of legal issues concerning the execution of the judgment.