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European Court of Human Rights

The Right of Individual Petition to the European Court of Human Rights

The right of individual petition to the European Court of Human Rights was reintroduced for the Cayman Islands in 2006. In the absence of constitutional guarantees for human rights, this is an important international safeguard.

The European Court of Human Rights is an international court based in Strasbourg, not to be confused with the European Court of Justice, which sits in Luxembourg. The European Court of Human Rights consists of a number of judges equal to the number of member States of the Council of Europe that have ratified the Convention for the Protection of Human Rights and Fundamental Freedom, which is currently forty-five. The Court’s judges sit in their individual capacity and do not represent any State. In dealing with applications, the Court is assisted by a Registry consisting mainly of lawyers from all the member States (who are also known as legal secretaries). They are entirely independent of their country of origin and do not represent either applicants or States.

The Court is established under the European Convention on Human Rights and it is this international treaty which provides how the Court should function. The Convention also contains the rights and guarantees which the States have undertaken to respect and it is the Court’s task to ensure that States respect the rights and guarantees set out in the Convention. It does this by examining complaints (known as “applications”) lodged by individuals or, sometimes, by States. Where it finds that a member State has violated one or more of these rights and guarantees, the Court delivers a judgment. Judgments are binding: the countries concerned are under an obligation to comply with them.

Following the extension of the right of individual petition to the Cayman Islands, an individual may lodge an application with the Court, if you consider that you have personally and directly been the victim of a violation of the rights and guarantees set out in the Convention or its Protocols.

Your application must relate to one of the rights set out in the European Convention on Human Rights. Alleged violations may cover a wide range of issues, such as: torture and ill-treatment of prisoners; lawfulness of detention; shortcomings in civil or criminal trials; discrimination in the exercise of a Convention right; parental rights; respect for private life, family life, the home and correspondence; restrictions on expressing an opinion or on imparting or receiving information; freedom to take part in an assembly or demonstration; expulsion and extradition; confiscation of property; and expropriation. You cannot complain of a violation of any legal instrument other than the European Convention on Human Rights, such as the Universal Declaration of Human Rights or the Charter of Fundamental Rights.

The following rights, in particular, are protected:

  • the right to life;
  • the right to a fair hearing in civil and criminal matters;
  • the right to respect for private and family life;
  • freedom of expression;
  • freedom of thought, conscience and religion;
  • the right to an effective remedy;
  • the right to the peaceful enjoyment of possessions;
  • and the right to vote and to stand for election

In addition, the following, in particular, are prohibited:

  • torture and inhuman or degrading treatment or punishment;
  • arbitrary and unlawful detention;
  • discrimination in the enjoyment of the rights and freedoms set out in the Convention;
  • the expulsion by a State of its own nationals or its refusing them entry;
  • the death penalty;
  • and the collective expulsion of aliens.

In order to lodge an application, you do not need to be a national of one of States bound by the Convention. The violation you are complaining of must simply have been committed by one of those States within its “jurisdiction”, which usually means within its territory. Following the extension of the right of individual application to persons in the Cayman Islands, this means that acts and omissions of the Cayman Islands Government may now be the subject of an application, although the case would still be against the United Kingdom, as the State that is party to the Convention.

The Court cannot deal with complaints against individuals or private institutions, such as commercial companies, although a legal entity such as a company or association, as well as a private individual, can be an applicant. You must, however, have directly and personally been the victim of the violation you are alleging. You cannot make a general complaint about a law or a measure, for example because it seems unfair; nor can you complain on behalf of other people (unless they are clearly identified and you are their official representative).

However, before an individual is able to petition the Court, you must have used all of the domestic remedies in the State or territory concerned that might have been able to redress the situation you are complaining about. In the Cayman Islands, this will usually mean an application to the appropriate court, followed by an appeal, where applicable and even a further appeal to the Privy Council as the highest court of appeal. It is not enough merely to make use of these remedies. In so doing, you must also have actually raised your complaints (that is, the substance of the Convention violations you are alleging). You have only six months from the date of the final decision at domestic level (generally speaking, the judgment of the highest court) to lodge an application. After that period your application cannot be accepted by the Court.

Some of the disadvantages of the European Court of Human Rights are therefore that it can be expensive and time-consuming, which is partly why a local Human Rights Committee has been established. The local Human Rights Committee, which provides a more immediate avenue for a complaint is not, however, a legal body and cannot therefore enforce its views. As such the local Human Rights Committee can only advocate for change. Individuals with human rights concerns should note that accessing the local Human Rights Committee does not preclude a subsequent application to the European Court of Human Rights; and in addition that a potential applicant is not required to have petitioned the local Human Rights Committee in advance of any application to the European Court of Human Rights,.

Following the exhaustion of all domestic remedies, the application process may be initiated by sending a letter to the Court giving clear details of your complaint (in which case you will receive an application form which must be filled out) or by filling out an application form directly. The letter and/or application form should be sent to the following address:

The Registrar
European Court of Human Rights
Council of Europe
F-67075 Strasbourg Cedex

You may write in one of the Court’s official languages (English and French) or in an official language of one of the States that have ratified the Convention. If you lodge your application by fax, you must also send a copy by post. Do not come to Strasbourg in person to state your case orally. Your case will not be examined any more quickly and you will not receive any legal advice. The Registry may ask you for additional documents, information or explanations relating to your complaints. As soon as you have a copy of the application form, you should fill it out carefully and legibly and return it as quickly as possible. It must contain :

  • a brief summary of the facts and your complaints;
  • an indication of the Convention rights you think have been violated;
  • the remedies you have already used;
  • copies of the decisions given in your case by all the public authorities concerned (these documents will not be returned to you, so only copies should be sent);
  • and your signature as the applicant, or your representative’s signature.

If you do not wish your identity to be disclosed, you must inform the Court immediately, giving reasons. The President will determine whether your request is justified. At this stage of the proceedings you do not have to be represented by a lawyer. If, however, you wish to apply to the Court through a representative, you must send with the form your authority for him or her to act on your behalf.

Proceedings are conducted in writing. You will be informed in writing of any decision taken by the Court. Public hearings are exceptional. Your case will be dealt with free of charge. Although you do not need to be represented by a lawyer in the first stages of the proceedings, you will need a lawyer once your application has been notified to the Government. The great majority of applications are, however, declared inadmissible without being notified to the Government. You will have to bear only your own costs (such as lawyers’ fees or expenses relating to research and correspondence). After your application has been lodged, you may apply for legal aid. Legal aid is not granted automatically, and awards are not made immediately but only at a later stage of the proceedings.

The Court must first examine whether your application is admissible. This means that the case must comply with certain requirements set out in the Convention. If the conditions are not satisfied, your application will be rejected. If you have made several complaints, the Court may declare one or more of them admissible and dismiss the others. If your application or one of your complaints is declared inadmissible, that decision is final and cannot be reversed. If your application or one of your complaints is declared admissible, the Court will encourage the parties (you and the State concerned) to reach a friendly settlement. If no settlement is reached, the Court will consider the application “on the merits” – that is, it will determine whether or not there has been a violation of the Convention.

The Court has proved to be a popular remedy, primarily because its findings can be enforced, although this has increased the pressure on the system and increased delays. In view of the current backlog of cases, you may have to wait a year before the Court can proceed with its initial examination of your application. Some applications may be treated as urgent and dealt with as a matter of priority, particularly where the applicant is said to be in imminent physical danger.

There are limitations to what the Court can do. The Court does not act as a court of appeal vis-à-vis national courts; it does not rehear cases, it cannot quash, vary or revise their decisions. The Court will not intercede directly on your behalf with the authority you are complaining about. In exceptional circumstances the Court may, however, grant interim measures. As a matter of practice it only does so where there is a serious risk of physical harm to the applicant. The Court will not help you find or pay a lawyer to draw up your application. The Court cannot give you any information on legal provisions in force in the State against which your complaints are directed.

However, if the Court finds that there has been a violation, it may award you “just satisfaction”, a sum of money in compensation for certain forms of damage. The Court may also require the State concerned to refund the expenses you have incurred in presenting your case. If the Court finds that there has been no violation, you will not have to pay any additional costs (such as those incurred by the respondent State). That said, the Court is not responsible for the execution of its judgments. As soon as the Court has given judgment, responsibility passes to the Committee of Ministers of the Council of Europe, which has the task of supervising execution and ensuring that any compensation is paid.

For additional information on the European Convention on Human Rights, visit: www.echr.coe.int

For additional information on the European Court of Human Rights, visit: www.echr.coe.int

Last Updated: 2007-01-11