Regional systems
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However, if a remedy that should have been sought by the applicant has not been sought,
the Court will declare the case inadmissible. Only “effective” remedies capable of remedying
the violation completely must be exhausted, and this normally includes both judicial and
administrative procedures. Discretionary remedies (such as seeking clemency after a conviction)
do not generally have to be pursued.
Once a final judgement in the relevant domestic proceedings is received, the applicant must
lodge a complaint with the European Court of Human Rights within six months. Where a law
in force constitutes a continuing violation, the application may be made at any time. If the
applicant is initially unaware of the violation, the six-month limit begins from the date he or
she acquires actual knowledge. It is important to note that the application cannot have been
previously submitted to another body of international investigation, such as the United Nations
Human Rights Committee.
Finally, the application must claim violation of a right that is actually protected under the
Convention. For example, a claim of ethnic or religious discrimination in the administration of
a State’s social security scheme would not be admissible, because there is no right under the
Convention to social security. However, this limited interpretation of discrimination was expanded
by the entry into force of Protocol No. 12 to the Convention.
Investigation and decision
There may be an exchange of written pleadings on both admissibility issues and the substantive
merits of an application. Each party may comment on the submissions made by the other party.
The process is usually by way of written pleadings only, although the Court may decide to hold
an oral hearing on admissibility or the merits or both. Again, each side is represented at any
hearing, and the entire procedure is based on equality between the applicant and the State as
party.
NGOs may be asked to provide expert evidence or to appear as witnesses, and minority rights
advocates should be aware of the possibility of submitting an amicus curiae brief to the Court
if a case is of particular concern. This procedure is called a third-party intervention and may
be sought once a case has been communicated to the respondent State for its observations.
It offers the possibility of providing useful information to the Court on an issue that may have
a direct impact on minority rights beyond the scope of the particular case at hand. An NGO
interested in intervening should write to the President of the Court for permission within 12 weeks
of communication of the case to the State concerned, information about which can be obtained
from the Court’s website.
The Court examines the merits of the case through the written pleadings, and it may hear
witnesses or even travel to the country concerned if it is deemed necessary. The Court will seek
to reach a friendly settlement, if that is possible, but this happens only if both sides agree.
The Court’s deliberations are in private, but its judgement is public and is communicated
immediately to both parties. The Court has limited its judgements to determining whether or not
there has been a violation of the Convention and awarding monetary damages and costs when
a violation is found. The Court does not, in principle, issue orders to Governments, for example,
to release a prisoner or change its laws. However, in recent years it has shifted somewhat in
this respect, for example, by indicating that an unlawfully detained person should be released
(Ilascu and Others v. Moldova and Russia [GC] (2004)). As noted above, the Court’s judgement
is legally binding on States parties to the Convention. Ensuring compliance with a decision of the
Court is a matter for the Committee of Ministers under article 46.2 of the Convention, although
the great majority of States do comply with judgements readily.
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