More on admissibility, the view from the Court – Paul Harvey and Pamela McCormick

19 September 2012 by Guest Contributor

Rosalind English’s excellent posts here and here provide a clear overview of the Court’s case law on and its approach to the admissibility criteria. As approximately 97 % of all UK applications to the Court are currently found to be inadmissible or are struck out (see the Court’s 2011 statistics and Andrew Tickell’s earlier post, it is important for applicants and especially practitioners to have a clear understanding of the admissibility criteria before lodging their applications. 

However, as the vast majority of inadmissible applications are declared inadmissible by a single judge in decisions which are never published, there is little information in the public domain about how these criteria are applied in practice.

Consequently, we would like to take this opportunity to supplement Rosalind’s overview by providing practitioners with some practical information on the application of the criteria to UK cases as well as other guidelines for submitting applications.

The Court’s general approach to admissibility

Many practitioners still incorrectly assume that for all applications there is an initial, “admissibility” stage of proceedings and a later “merits” stage. Instead, it is more helpful to distinguish between: (i) the procedure before an application is communicated to the respondent Government for their observations; and (ii) the procedure after communication. 

Communication of an application simply means that the application and any supporting documents are sent to the Government together with a statement of facts prepared by the Registry and a series of questions that they must answer in written observations. The statement of facts and the questions are usually available in the “communicated cases collection” in HUDOC.

Only a small percentage of UK applications to the Court are ever communicated to the UK Government (in 2011, only 60 cases were communicated; whereas 1,028 were declared inadmissible or struck out, and provisional figures for 2012 suggest an even higher proportion of cases will be declared inadmissible this year). This is because upon receipt of an application, the Court can declare a case inadmissible on any of the grounds of inadmissibility set out in Articles 34 and 35 of the Convention (a “de plano inadmissibility decision”). As indicated in the introduction, in the majority of cases this is done by a single judge, although it may also be done by a Committee or a Chamber of the Court (recent examples of Chamber de plano inadmissibility decisions include K.S. v. the UK and Grainger v UK).

If the Court decides to communicate an application to the Government, but suspects that admissibility might be in dispute, it can put a specific question to the parties on this issue and reserve its decision until it has received the parties’ observations.

If the Court communicates a case without asking a specific question on the admissibility of the complaints, then the general rule is that the Court will only consider questions of admissibility if the Government expressly raises an admissibility objection. The exception to this rule is that the Court can, at any time in the proceedings, consider questions relating to incompatibility ratione loci, personae, and temporis of its own motion. The justification for this is that these go to the heart of the Court’s jurisdiction to hear complaints under the Convention. The six-month rule is also one that the Court can always apply of its own motion for this reason (see Harris, O’Boyle & Warbrick, The Law of the European Convention on Human Rights, 2^nd ed, 2009, OUP, p. 758).

The six-month rule 

The Brighton conference decided (rightly in our opinion) that the Convention should in the future be amended to change the six-month rule to four months. We would make two further points about the rule.

First, the requirement that applications be lodged within six months is a deadline, not a direction: applicants do not need to wait five months and six days from receiving the last domestic decision before lodging a case with the Court. The Court is frequently and often rightly criticised for the time it takes to decide cases but applicants do themselves no favours by lodging cases at the last moment. Subject to the Court’s priority policy cases are considered in the order they are lodged. Therefore, waiting six months to lodge an application simply means that other cases decided at the same time by the domestic courts may be considered sooner by the Court simply because the representatives in those cases have lodged an application sooner.

Second, leaving matters to the last minute can have real consequences. Any application which is not properly completed may be rejected by the Court pursuant to Rule 47 of the Rules of Court (see below). If a second, properly completed application is then lodged, it will be the date the second application is lodged which will count for the purposes of the six-month rule. Therefore, any applicant who waits until the last minute before lodging an application runs the risk of having that application rejected and finding that it is too late to submit a proper application.

Exhaustion of domestic remedies 

On occasion, domestic courts and other bodies will provide prospective applicants with a letter telling them that they have exhausted domestic remedies. This practice is problematic.

First, as a matter of law, it is for the Strasbourg Court to determine whether a given applicant has exhausted domestic remedies.

Second, it may well be that, in the particular case, the domestic authority providing the letter will be considered by the Strasbourg Court to be an ineffective remedy. As the Court’s case law makes clear, only effective remedies are to be regarded as interrupting the running of the six-month rule.

For instance, many applications are rejected every year because applicants erroneously assume that an application to the Criminal Cases Review Commission is an effective remedy in respect of complaints concerning the fairness of criminal proceedings. It is not (see Tucka v. the UK (no. 1)). Similarly, appeals to courts which are ordinarily effective remedies will not interrupt the six-month rule if those appeals are lodged out of time: see, for instance, the out of time appeals lodged with the Scottish Appeal Court in Lang and Hastie v the UK. The same is true if an applicant seeks leave to appeal to the Supreme Court when no appeal lies to that court (for instance, if the applicant has been refused permission to appeal to Court of Appeal).

As Rosalind English notes, a declaration of incompatibility is not regarded as an effective remedy (see Hobbs v. the UK, confirmed by the Grand Chamber in Burden v. the UK), although the Court has never applied the six-month rule to applicants who have sought such a declaration.

It is, however, worth noting that in a recent speech the President of the Court, Sir Nicolas Bratza, indicated that there were signs the Court’s attitude to declarations of incompatibility could soon be revisited, a move which would be welcomed as it would give the UK greater freedom to remedy violations without interference by Strasbourg (see “The relationship between the UK courts and Strasbourg”, [2011] E.H.R.L.R. 505).

Therefore, in case the Court does decide that the time has come to depart from its rulings in Hobbs and Burden, it may well be advisable for applicants to pursue complaints before the domestic courts under the HRA, even where the only remedy available would be a declaration of incompatibility.

A properly completed application

As stated above, Rule 47 of the Rules of Court makes clear that a properly completed application is not simply a properly filled in application form, but one that also contains, among other things, copies of all relevant domestic decisions (see Rule 47(1)(h)). A frequent source of frustration for lawyers in the Court’s Registry (and indeed a common cause of delay in examining cases) is the failure of applicants and their representatives to submit all relevant domestic decisions when lodging an application.

The most common failure is submitting copies of court orders (above all, Court of Appeal orders) without submitting transcripts of the courts’ judgments. Orders themselves tell the Strasbourg Court nothing. The same might be said of the equally common failure to provide a transcript of the trial judge’s summing up in an Article 6 criminal case. Where applicants are in detention or otherwise can show good reason for not submitting documents, the Court may grant an extension of time for them to complete their application. However, in the absence of any such good reason, the Court may reject the application for non-compliance with Rule 47.

Finally, two often overlooked requirements of Rule 47 are requirements for a succinct statement of facts and a succinct statement of the alleged violation(s) of the Convention (Rule 47(1)(d) and (e)).

We would emphasise the need to be succinct. Indeed this is reinforced by the Court’s practice direction on the institution of proceedings, which indicates that where, exceptionally, an application exceeds ten pages, an applicant must also file a short summary.

The practice – even of experienced practitioners before the Court – of copying and pasting large portions of domestic judgments or domestic statutes into the statement of facts or statement of alleged violations is unhelpful and unnecessary. Likewise, it there is little value in including long references to the Court’s own jurisprudence.

If all domestic decisions and other relevant documents are properly annexed to the application form, we would suggest that applicants are better served by their representatives stating shortly and clearly what has happened and why they believe the Convention has been breached. Once an application has been communicated the applicant will of course be given an opportunity to develop their arguments in their written submissions.

Paul Harvey and Pamela McCormick are UK lawyers in the Registry of the European Court of Human Rights. The views expressed are personal.

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Related posts:

• Strasbourg applications: some aspects of the “six-months” rule
• How do you “exhaust local remedies” for the purposes of applying to Strasbourg?
• Can a judgment in default of defence be in breach of Article 6?
• A bluffer’s guide to human rights courts
• Is the Strasbourg Court “obsessively interventionist”? a view from the Court – Paul Harvey