106
PROMOTING AND PROTECTING MINORITY RIGHTS
The Court cannot accept anonymous complaints, and the name of the applicant will be given to
the State. The proceedings of the Court are public, although confidentiality may be maintained
in appropriate cases by referring to an applicant only by initials. States have an obligation not
to obstruct the application and to cooperate with the Court in its investigation.
In order to initiate proceedings under the Convention, an applicant should allege a violation of
one or more rights guaranteed under the Convention or one of its Protocols. A complaint may
involve action taken by the State itself or by a State organ, such as the armed forces, police
forces, courts or other public bodies. Only rarely has the Court allowed a complaint alleging that
a private party has caused the harm; in those instances either the State had delegated a public
function to the private body or it was the duty of the State to deter such actions by third parties.
The Convention protects everyone within the jurisdiction of the State. The nationality of the
applicant is not important; indeed, a claim may even be made by a stateless person. An
application may be brought if action by one State may result in a violation of rights in another
State, even if the latter is not a party to the Convention. The most common example of this
situation is when a person seeks to prevent deportation or extradition to a State in which there
is a danger of torture or death.
The “victim” requirement
In order to file a case under the Convention, the complainant must have suffered personally from
the alleged violation. This might be as a direct result of State action, for example, if the applicant
personally suffered torture, had a publication seized by the Government or was prohibited from
exercising his or her religion. A violation may cause personal harm also to the relatives of those
whose rights were directly violated; for example, parents could claim harm if their child were
detained or otherwise mistreated.
Potential victims also may file a case in some circumstances. The Court has accepted the
argument that an applicant is a victim if there is a risk of their being directly affected by a State
action, such as enforcement of statutes outlawing homosexuality or requiring sex education in
schools, contrary to the wishes of the parents. However, the applicant must show that there is real
personal risk, not just a theoretical possibility, of being a victim in the future. A general complaint
about a law or a measure is inadmissible, as is a complaint on behalf of other people (unless
they are clearly identified and the applicant is their official representative).
Individuals, groups of individuals and NGOs may file applications. If a group or NGO lodges
a complaint, it must still fulfil the “victim” requirement. Clearly, where the organization is itself
the victim of the breach (if a school is closed or an organization is subjected to improper police
surveillance, for example), this will be sufficient. Trade unions, companies, religious bodies,
political parties and the inhabitants of a town have been found by the Court to fulfil the “victim”
requirement. Where members of a group or association are the victims, it may be advisable to
lodge both an individual and a group complaint. Should the group complaint fail the admissibility
test, the case may succeed on the individual complaint.
A group need not be formally registered or recognized by the State in order to bring a claim.
Moreover, where lack of recognition denies access to domestic courts and prevents a minority
group acting to defend its rights, it may amount to a denial of fair trial or an effective remedy
(arts. 6 and 13 respectively) that could itself be challenged under the Convention.
Other admissibility requirements
As is generally true for international human rights procedures, applicants must show that they
have tried to seek a remedy for the alleged breach from the State concerned. In rare cases,
there may be no suitable and effective remedy for violation of a particular Convention right.