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Applications to European Court of H R

2. APPLICATION TO THE EUROPEAN COURT OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS


 2.1. E.C.H.R.'S CASES

According to the European Convention of Human Rights and Fundamental Freedoms there shall be two cases to be referred to the Court: a). Inter-States cases: according to Art. 33 of E.C.H.R. “Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the protocols thereto by another High Contracting Party”. That is to say that any high contracting party may report on another high contracting party for violation of provisions contained in the Convention . b). Individual applications: According to Art. 34 of E.C.H.R .“The Court may receive applications from any person, non-governmental 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. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right ”. That is to say that according to Art. 34 any person, non-governmental organization or group of individuals may apply to the Court in case of violation of the provisions contained in the Convention.

When claiming to be the victim of such a violation, any person or non-governmental organization may apply to the Court. The applications against High Contracting Parties shall be about cases happened after the date on which that State signed the Convention.

Then according to Art. 35 of E.C.H.R. “The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the final decision was taken ”. That is to say that all domestic remedies shall be exhausted, the period of time shall not be over six months from the date of the decision and, always according to Art. 35 of E.C.H.R., the Court  shall not deal with any application that is anonymous, manifestly ill-founded, an abuse of the right of application, incompatible with the provisions of the Convention or the protocols thereto or substantially the same as a matter already examined  or submitted to another procedure of international investigation or settlement. 

 

2.2  INDIVIDUAL APPLICATIONS' PROCEDURE

2.2.1. Any person, non-governmental organization claiming to be a victim of a violation of the Convention by a High Contracting Party may lodge directly with the Court addressing an international registered letter to: European Court on Human Rights and Fundamental Freedoms, Council of Europe - 67075 Strasbourg – France CEDEX.

The application shall include:

  1. A description of the facts;
  2. The claims against the High Contracting State;
  3. A description of all domestic remedies exhausted;
  4. What the requests are; the letter can be written in Italian even if the official languages of the Court are English and French.

The Court shall then send to the Party a copy of the Convention and a complete application form that shall be returned filled in, in three copies within six weeks. The Court shall include in its letter the number of  the case which shall always be mentioned in all letters. Individual applicants may submit applications themselves, but legal representation is recommended after a decision declaring an application admissible.

To apply to a legal adviser qualified for practicing in the High Contracting Parties is necessary but the President of  the Chamber may, according to Art. 36, give the authorization to self-representation with the advise of  a loyer or an other authorized representative. In case of self- representation or legal representation is necessary to know one of the official languages of the Court (English or French) unless the President of the Chamber authorizes the continued use of the language of the applicant.

 

2.2.2. The application form to be sent to the Court.

 The application form is divided into nine sections which shall be completely and carefully filled in. Section I: details of the applicant or legal representation.

Section II: the description of the claims  and the domestic remedies exhausted included the dates of the hearings and their description.

 Section III: the applicant shall give evidence of the actual violation of the Convention by the High Contracting State and again all domestic remedies exhausted. 

Section IV: the description of all domestic remedies that could have been taken into account.

 Section V: the descriptions of all requests to the Court.

Section VI: the description of other international investigations already applied.

Section VII: all documents sent by the Court together with the application. Only copies shall be sent as they will not be returned and their property shall be testified by the applicant or legal representative.

Section VIII: the indication of the language (English or French) in which the decision of the Court shall be drafted.

Section IX: the applicant or his legal representative sign the document declaring the accuracy of its containt. The application form to be transmitted to the Court:

 

I - LES PARTIES THE PARTIES LE PARTI A. LE REQUÉRANT THE APPLICANT IL RICORRENTE (Renseignements à fournir concernant le requérant et son représentant éventuel) (Fill in the following details of the applicant and any representative) (Informazioni relative al ricorrente e al suo eventuale rappresentante) 1. Nom de famille ................................ Name ofapplicant Cognome 2. Prénom(s)........................................ First name(s) .......................................Nome 3. Nationalité....................................... Nationality Nazionalità 4. Profession....................................... Occupation Professione 5. Date et lieu de naissance........................................................Date and place of birth Data di nascita 6. Domicile..................................................................................Permanent address Indicazione del domicilio o della residenza 7. Tel. n. ...................................................................................... 8. Adresse actuelle.......................................................................At present at Indirizzo attuale Le cas échéant -if any- se del caso 9. Nom et prénom du raprésentant*...........................................Name ofrepresentative* Nome del rappresentante 10. Profession du représentant ........................................................ Occupation of representative Professione del rappresentante 11. Adresse du représentant............................................................Address of representative Indirizzo del rappresentante ................................................................. 12. Tel. N°............ B. LA HAUTE PARTIE CONTRACTANTE THE HIGH CONTRACTING PARTY L’ALTA PARTE CONTRAENTE (Indiquer ci-après le nom de l'Etat contre lequel la requête est dirigée) (Fill in thename of the Contry against which the application is directed) (Indicare il nome dello Stato contro cui è diretto il ricorso) 13. ......................................................................................................____ * Si le requérant est repésenté, joindre une procuration signée par le requérant en faveur du raprésentant. A form of authority signed by the applicant should be submitted if a representative isappointed.Se il ricorrente è rappresentato, è necesario allegare una procura firmata dal ricorrente a favore del rappresentante. II -EXPOSÉ DES FAITS STATEMENT OF THEFACTS ESPOSIZIONE DEI FATTI 14.? III - EXPOSÉ DE LA OU DES VIOLATION(S) DE LA CONVENTION ALLÉGUÉE(S) PAR LE REQUÉRANT, AINSI QUE DES ARGUMENTS À L'APPUI STATEMENT OF ALLEGED VIOLATION(S) OF THECONVENTION AND OF RELEVANT ARGUMENTS ESPOSIZIONE DELLA VIOLAZIONE O DELLE VIOLAZIONI DELLA CONVENZIONE DENUNCIATE DAL RICORRENTE E DELLE RELATIVE ARGOMENTAZIONI 15.IV - EXPOSÉ RELATIF AUX PRESCRIPTIONS DE L'ARTICLE 35 DE LA CONVENTION STATEMENT RELATIVE TO ARTICLE 35 OFTHE CONVENTION ESPOSIZIONE RELATIVA A REQUISITI DI CUI ALL'ART. 35 DELLA CONVENZIONE 16. Decision interne définitive (date et nature de la décision, organe - judiciarie ou autre - l'ayant rendue) Final decision (date, court or authority and nature of decision) Decisione interna definitiva (data e natura della decisione, organo -giudiziario o altro- che l’hanno resa) 17. Autres décisions (enumérées dans l'orde chronologique en indiquant, pour chaque décision, sa date, sa nature et l'organe - judiciaire ou autre - l'ayant rendue) Other decisions (list inchronological order, giving date, court or authority and nature of decision for each one) Altre decisioni (elenco in ordine cronologico, indicando per ciascuna la data, la natura e l’organo –giudiziario o altro- che l’hanno resa) 18. Le requérant deposait-il d'un recours qu'il n'a pad exercé? Si oui, lequel et pour quel motif n'a-t-il pas été exercé? Is any other appeal or remedy availablewhich you have not used? If so, explain why you have not used it. Il ricorrente dispone o disponeva di un ricorso che non è stato esercitato. Se sì, quale e per quale motivo non lo ha esercitato? V-EXPOSÉ DE LA REQUÊTE STATEMENT OF THE OBJECT OF THEAPPLICATION ESPOSIZIONE DELLA RICHIESTA 19. VI- AUTRES INSTANCE INTERNATIONALES TRAITANT OU AYANT TRAITÉ L'AFFAIRE STATEMENTCONCERNING OTHER INTERNATIONAL PROCEEDINGS ALTRE ISTANZE INTERNAZIONALI CHE TRATTANO O HANNO TRATTATO LA CAUSA 20. Le requérant a-t-il soumis à une autre instance internationale d'enquête ou de reglement les griefs énoncés dans la présente requête? Si oui, fournir des indications détaillées à ce sujet. Have you submitted the abovecomplaints to any other procedure of international investigation or settlement? If so, give full details.Il ricorrente ha sottoposto ad un’altra istanza internazionale di inchiesta o di regolamento le doglianze presentate in questo ricorso? Se sì, fornire dettagliate indicazioni a riguardo. VII- PIÈCES ANNEXÈES (PAS D'ORIGINAUX, UNIQUEMENT DES COPIES) LIST OF DOCUMENTS (NO ORIGINAL DOCUMENTS, ONLY PHOTOCOPIES) ELENCO DEI DOCUEMNTI (NESSUN DOCUMENTO ORIGINALE, SOLO FOTOCOPIE) 21.a)................................................................................................................................. b)................................................................................................................................ c)................................................................................................................................. VIII -LANGUE DE PROCÉDURE SOUHAITÉE STATEMENT OF PREFERRED LANGUAGE LINGUA DELLA PROCEDURA 22. Je préfére recevoir la décision de la Commission en: anglais/français I prefer to receive the Commission's decision in : English/French Preferisco ricevere le decisioni della Corte in inglese/francese IX-DÉCLARATION ET SIGNATURE DECLARATION ANDSIGNATURE DICHIARAZIONE E FIRMA 23. Je déclare en toute conscience et loyauté que les renseignements qui figurent sur la présente formule de requête sont exacts et je m'engage à respecter le caractère confidentiel de la procédure de la Commission. I hereby declare that, to thebest of my knowledge and belief, the information I have given in the application is correct and that I will respect the confidentiality of the Commission's proceedings. Io dichiaro in coscienza e fede che le informazioni sopra riportate corrispondono a verità e mi impegno a rispettare il carattere riservato del procedimento davanti alla Commissione. Lieu/Place/Luogo .............................. Date/Date/Data ...................... ....................................................................................? (Signature du requérant ou du représentant) ( Signature of the applicant or of the representative) (Firma del ricorrente o del rappresentante)

 

PROXY TO BE INCLUDED AT TE FOOT OF THE APPLICATION OR OF THE ATTACHED DOCUMENT: EUROPEAN COURT OF HUMAN RIGHTS;

PROXY:           The undersigned …….(first name, name and permanent address of the applicant) I hereby appoint Mr…as my lawyer to represent and safeguard my interests during the proxy at the European Court of Human Rights and  in any case necessary according to the European Convention on Human Rights, as far as my application against the High Contracting State of……. I hereby declare to take permanent address during the proxy at:………, at Mr….cabinet Date and signature of the applicant. To authenticate the signature and to accept the commitment. Date and signature of the lawyer.

 

2.2.3. Individual application procedure.

Each individual application is assigned to a Section of the Court, whose President designates a rapporteur that examine the case. The rapporteur may invite the applicant or his legal representative to submit further evidence or written observations. The rapporteur then writes a report that shall be transmitted to the Chamber and the Committee. If the rapporteur declare inadmissible the application, the report containing the description of the reasons of the striking out shall be transmitted to the three-member Committee. The Committee may agree or not with the rapporteur. If it doesn't agree, the report shall be transmitted to a Chamber of seven judges. If the rapporteur declare the application admissible, the report shall be transmitted to the Chamber together with a written document containing the facts, the applicant requests and his own judgment.

After the examination of the reports the Chamber may:

a). declare an application inadmissible or strike out an application;

b). ask for further information and documents;

c).invite the involved parties to submit written comments

d). to hold hearings even on request; so at the end of this procedure, the Court may give its judgment on the admissibility of the application.

Within two months from the date of the admissibility judgment, the applicant can submit a claim for "just satisfaction" according to Art. 41 of E.C.H.R.

 The Chamber may:

a). according to Art. 38 of E.C.H.R., place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the protocols thereto. If friendly settlement is effected, the Court shall strike the case out of its list by means of a decision which shall be confined to a brief statement of the facts and the solution reached.

 b). invite the parties to submit further evidence and written observations;

 c). to hold a hearing if not already done previously.

The procedure before the Court is public unless the it decides otherwise on account of exceptional circumstances. Any connection with the Court is by means of letters and it is free in case of admissibility or inadmissibility of applications.

According to Art. 91 of the Rules, the President of the Chamber may, on applicant's request, grant the right to free representation during the defense procedure. Free representation may be granted only when strictly necessary to the fair development of the case or when the applicant has not appropriate financial means to sustain in part or all his defense. Honorariums shall be paid exclusively to lawyers or legal representatives according to Art. 36 of the Rules and shall be enough to pay  necessary costs to the case.

 According to Art. 95 of the Rules, the amount of honorariums is fixed by the Clerk after the evaluation of the amount to be paid as case costs  and the contemporary average. At the end of this procedure it gives its judgment.

Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may relinquish jurisdiction in favor of the Grand Chamber.

 

2.3. KINDS OF APPLICATIONS

1. Application for excessive length of a civil trials.

 According to Art.6.1 of E.C.H.R. “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ”.

This is the cause of the majority of reasons of applications against Italy. In the year 2000, there were 233 applications on 867 in which Italy was sentenced guilty for the excessive length of trials. In 1997 those applications were 8 billions; in 1998, 7 billions; in 1999, 12 billions and 5 billions in the first months of 2000. Since the beginning of 2001, the Court of Strasbourg has received about 10.000 applications to be examined; 2.124 of which are against Italy.

The main goal of Art. 6 is to give fair trials within a reasonable time to individuals. The application shall be submitted to the Court within six months from the date on which the final decision was taken.

According to Art. 35 of E.C.H.R. “The Court may only deal with the matter within a period of six months from the date on which the final decision was taken”.

 The applicant may wait for the decision of the Supreme Court and then within six months submit his application to the Court or, submit it without waiting for the final decision. Only in the case of a Supreme Court judgment or when it becomes final, it is possible to fix the date from which starting to count the period of six months.

In the case of junior or senior decision, the six months shall be calculated from the date on which the decision becomes final.

 When the length of a trial becomes excessive? According to the Court decision, when a violation of Art.6 of E.C.H.R. is denounced, it shall be examined the causes of the violation and it shall be judged if those causes may justify the time passed by. So, to judge the excessive length of a trial it is necessary to take into consideration the final decision, the parties' behavior, the judge and chancellery behavior, the date on which the trial started and the one on which it ended. It is a very complicated matter and at times both the Party or applicant behavior can't be the causes of the extreme length of trials. The judge behavior instead is a key factor. In fact, the Party is responsible only when there are general malfunctioning of its legal division which prevent the judge from doing his job in a reasonable time.

According to the Court “the High Contracting Parties are bent by the Convention to organize their Courts in accordance with the dispositions of Art. 6.1”.

Therefore, the Court decided to judge of excessive length trials lasting between a period of 3 years and 6 months and 13 years. Each application for excessive length of trials is examined by the Court.

 

 2. Application for the excessive length of criminal trials.

Even in the case of criminal trials Italy was found guilty many times for the excessive length of trials. Licio Gelli case is a clear example: his trial began in 1982 and ended in 1996. Considering the complexity of this case, the applicant behavior (he has been a fugitive from justice for 4 years), and the behavior of the legal division, the Court recognized the violation of Art 6.1 of the Convention and with the final decision of 19 October 1999, sentenced Italy to pay moral liquidated injuries for an amount of Lire 20.000.000 and legal fees for an amount of Lire 2.000.000 plus VAT. On the matter of the excessive length of this trial the Court said “the reasonable time for a trial shall be determined with respect to the complexity of the case, the applicant and authorities behavior. ……Apart from the period of four years during which the applicant was fugitive from justice (a period of time not included in the one to be considered) the applicant behavior didn't caused the excessive length of the trial”. Even the applications about the excessive length of lawful detention are very popular on criminal trials.

 According to Art. 5 of E.C.H.R.“- Right to liberty and security.

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

    1. the lawful detention of a person after conviction by a competent court;
    2.  the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law;
    3. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
    4. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
    5. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
    6. the lawful arrest or detention of a person to prevent his affecting an unauthorized entry into the country or of a person whom action is being taken with a view to deportation or extradition.

2.            Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

  1. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
  2. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
  3. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation”.

Art. 5.3. is about the right to a reasonable length of lawful detention according to paragraph 1.c) of that Article, that is to say persons in detention waiting for a trial. The reasonable length of the detention while waiting for the trial  shall be examined “in each case and according to the case circumstances” (Court decision of 27 June 1968, Wemhoff case). The extension of the lawful detention while waiting for the trial must be supported by good reasons as public order, the applicant fleeing, the prevention of evidence destruction or the committing of other crimes.

 In Art. 5.3. there is no indication of the time in which the deprivation of liberty is to be considered lawful detention while waiting for the trial. The beginning of the lawful detention while waiting for the trial is the one in which the individual is deprived of his liberty.

According to the Court only a final decision may put an end to the lawful detention. Art. 5.4. of E.C.H.R. is about the right of imprisoned persons to have a fair hearing in front of a court to prove their innocence or not if found innocent they shall be speedily released.

With its judgment of  22 October 1989 on the Bezicheri case, the Court admitted the necessity of some time for the judge to make his investigations but, at the same time, it judged a violation of Art. 5.4 the five and a half months spent in jail by the accused person not yet found guilty. Art. 5.5. is about the right of compensation for persons arrested in contravention of the provisions of this same article.

 The victim situation is very different from the one of the accused person. In fact, when calculating the excessive length of a trial the dies a quo is based on the filing of the civil document during the criminal proceeding. According to a different jurisprudential trend, the starting is the accused person indictment. So, the Court uses its own principles both in criminal and civil trials, not calculating the preliminary investigation time when judging the excessive length of a trial.

 

 3. Applications for administrative reasons.

 The Court found Italy guilty for violation of the "reasonable time" due to the excessive slowness of administrative trials.

 In fact, at the very beginning the legal section of the Court excluded the possibility of applications addressed to Strasbourg  for administrative or public law reasons.

 Then, it allowed the applications for administrative law reasons if there were important private aspects involved.

Following, the Court allowed the applications for the excessive length of trials as in Art. 6.1 even for administrative law cases.

More recently, the Court faced the violation of Art. 6. 1 with its judgment of 30 March 2000 about the Regional Administrative Court trial during which Italy was condemned to pay Lire 16 millions as legal fees.

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