Досліджено умови, яких відповідно до Європейської Конвенції з прав людини та основних свобод, потрібно дотримуватись при зверненні до Європейського суду з прав людини. При вивченні цього питання було проаналізовано відповідну практику Європейського суду.
Ключові слова: ЄСПЛ, умови звернення, Європейська Конвенція з прав людини.
We researched conditions under which person can apply to the European Court of Human Rights. We analyzed an appropriate law practice of the European Court.
Keywords: ECHR, terms of applying, the European Convention on Human Rights.
The question of the rights and freedoms of man is the most important issue of internal and foreign policy of all countries today. After the accession of Ukraine to the Council of Europe in 1995, and especially after the ratification of the European Convention on Human Rights, citizens of Ukraine have the opportunity to appeal to the Strasbourg court.
Analysis of recent research presented by scientists such as V. Kapustynskyy, N. Pronyuk, N. Sevostyanova, A. Kirichuk and others.
Problem: explore terms of applying to the European Court of Human Rights.
The main material research. European Court of Human Rights is an international body that consider applications submitted by persons who complain about violation of their rights set out in the European Convention on Human Rights and Fundamental Freedoms. This Convention is an international treaty under which the majority of European countries are obliged comply with specified basic human rights.
According to article 34 of the Convention: «The Court may receive applications from any person, nongovernmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto». It means that a person may apply to the Court if he or she is personally and directly a victim of a violation by one of the states of one or more fundamental rights.
The Court may consider only those applications that are directed against States which have ratified the Convention or relevant protocols and concerning events occurring after the date of its ratification. The person may only appeal behavior (decision, action, inaction) of state and its agencies, institutions, organizations, officials or other government entities, local authorities. Citizens can appeal decisions, actions or omissions of state represented as one or several of these subjects [1].
Violation of the right should occur on the territory under the jurisdiction of the European Court of Justice. Only the person whose right has been violated could apply to the Court.
According to article 35 the Court accepts the application for consideration only after it been used all local remedies, and only within six months from the date of the final decision. The court does not consider application if:
- it is anonymous; or
- b) it is substantially the same as a matter that has already been examined by the Court or has been submitted to another procedure of international investigation or settlement and does not contain relevant new information.
Court declares inadmissible any individual application submitted under article 34 if it considers that:
- the application is incompatible with the Convention or the Protocols thereto, manifestly unreasonable or an abuse of the right of application; or
- the applicant did not suffer significant harm unless respect for human rights in the Convention and its Protocols, requires consideration of the merits and provided that on this basis can not be rejected, no matter which national court not considered properly [2, 59].
Exhaustion of local remedies includes the compulsory use of administrative and judicial tools stipulated in national legislation. However this condition is temporary. The Court may return to proceedings if the applicant fulfilled the condition of exhaustion of local remedies.
Today in Ukraine, the exhaustion of effective remedies in civil and criminal cases is appeal to the cassation instance (decision of inadmissibility for Arkhipov v. Ukraine, no.25660 / 02 and Vorobyeva v. Ukraine, no.27517 / 02). In economic cases such exhaustion is considered to be an appeal in cassation to the Supreme Court of Ukraine (decision of inadmissibility of the case MPP Golub v. Ukraine, no. 6778/05). In administrative cases exhaustion is appeal to the Supreme Administrative Court of Ukraine (decision of inadmissibility of the case Karuna v. Ukraine, no. 43788/05).
There is the possibility to appeal directly to the European Court in the case in the judicial practice of the highest judicial bodies is to clarify that deprive his chances to win the case, or when unfavorable position of the courts clearly known, as other persons or legal entities who found themselves in the same position certainly received a refusal. It is important to mention that ECHR established the absence of effective remedies at national level in certain categories of cases. It includes cases of excessive length of proceedings (judgment of Merit v. Ukraine, no. 66561/01), on conditions of detention (judgment Dvoynykh v. Ukraine, no. 72277/01), submitted a complaint or the claim of the State Executive Service of Ukraine (judgment Voytenko v. Ukraine, no. 18966/02) [3].
According to the article 35 applicants are required to apply an application to the Commission within six months from the date on which the final decision was taken. This provision, which is a restriction on the right to file an application requires a narrow interpretation. Simple message (letter) from the applicant is seen as «application», when the circumstances of the application is sufficiently clear.
The countdown of six months begins not only from the date of the national decision, but also the date when the applicant have knew solution and thus he was able to apply to the Court.
In cases when you can not appeal the decision or action state agencies, the term begins with the entry into force of the final decision or action. There is no «starting point» from which starts six months if the application refers to the enforcement of the law, the consequence of which is a violation that continues for a long time [4].
Rules of consideration anonymous complaints and appeals that contain new information (paragraphs 2 and 3. 35). When the application contains a matter that has been considered by the Court or has already been submitted to another procedure of international investigation or settlement court may accept it if it contains relevant new information. The application should not have previously considered by the European Court and similar international institutions – the Human Rights Committee, the Committee against Torture, the Committee against discrimination against women and so on.
In accordance with article 35 of Convention the Court must recognize application inadmissible if it is «incompatible with the Convention or the Protocols thereto, manifestly unfounded or an abuse of the right of application». The second position – «manifestly unfounded» application is the reason of many precedents.
It should be noted that more than 90% of applications are declared inadmissible due to the failure of one or more requirements [5].
Conclusions. Acceptance of the application is possible subject to the following conditions: the exhaustion of all local remedies, six months, an indication of the person of the plaintiff, the question should not be submitted to another procedure of international investigation or regulation.
REFERENCES
- Appeal to European Court : [Electronic resource]. – Access: http://www.igfm.org.ua/stor-nka/zvernennya-do-vropeiskogo-sudu
- Hom’yen D. A short guide the European Convention on Human Rights. / D. Hom’yen – K .: Phoenix, 2006. – 192 p.
- Solodko Paul Appeal to the the European Court of Human Rights / Paul Solodko [Electronic resource]. – Access: http://www.yur-gazeta.com/ru/oarticle/2513/
- Sevostyanova Natalia Ten mistakes appeal to the European Court of Human Rights [Electronic resource]. / Natalia Sevostyanova – Access: http://www.justinian.com.ua/article.php?id=3281
- 5% of the complaints filed to the European Court – from Ukraine [Electronic resource]. – Access: http://khpg.org/index.php?id=1350069479