Applying to the European Court of Human Rights is not just a last chance for justice, but a complex and lengthy procedure that requires careful analysis even at the stage of preparing the application.
This was emphasized by a member of the Committee of the National Bar Association of Ukraine on Criminal Law and Procedure Kyrylo Lehkykh in the latest podcast of the NAAU ‘Expert Opinion’.
According to him, the key task of a lawyer is to be able to realistically assess whether the case has the prospect of being considered by the ECHR before submitting the application. After all, not every violation of rights, even if obvious to the defense, will be recognized by the Strasbourg court as falling under the protection of the Convention for the Protection of Human Rights and Fundamental Freedoms.
“It is necessary to understand how the European Court views certain violations. Not every violation can be subject to appeal,” the lawyer emphasizes. To determine whether a complaint has prospects, it is necessary to study the court’s practice in similar cases. It is best to work with the original texts of decisions, not just with brief summaries in Ukrainian.
One of the tools for this is the official ECHR practice knowledge platform adapted to Ukrainian. It allows finding relevant practice regarding a specific violation and understanding how the Court has handled similar cases in the past. It is also worth referring to the HUDOC database – a complete register of ECHR decisions.
The speaker also drew attention to the fact that after the reform of the procedure, the court has become significantly more formalized, with strict requirements for the application format, shorter deadlines, and more complex communication. Therefore, a lawyer who understands the ECHR procedure and practice can save the client years of waiting and protect them from a futile proceeding. “There is a volume of complaints that may be promising, and certain things that will not have prospects. Communication with the Court will be better conducted by a lawyer,” believes K. Lehkykh.
And even in cases where a violation appears systemic, there is no guarantee that the court will recognize it as one that entails state responsibility. The acceptability of a case depends not on the subjective perception of the client or lawyer but on clear court standards and established practice. “We can fall into the trap of being knowledgeable about the case. We may think that the client has been violated many times and clearly, but the ECHR may have a different assessment,” the speaker warns.
K. Lehkykh notes that before turning to the ECHR, it is important to analyze what specific violation is the subject of the application, whether it is covered by the court’s practice, and whether national remedies have been exhausted. Without this, assessing the prospects of the case is difficult.