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The Right of Individual Application to the European Court of Human Rights

The Right of Individual Application to the European Court of Human Rights

23 Haziran 2022

1. INTRODUCTION

Fundamental rights and freedoms are defined by the Convention for the Protection of Human Rights and Fundamental Freedoms, known as the European Convention on Human Rights, and unlike the Universal Declaration of Human Rights, these rights are guaranteed by the European Convention on Human Rights and its annexed protocols. One of these assurances is the right of individual application to the European Court of Human Rights, which constitutes the subject of this article. The first and most important condition of the individual application process is that the country where the right of the applicant is violated is a party to the European Convention on Human Rights. Our country signed the contract in 1952 and the contract entered into force in 1954. The right of individual application to the European Court of Human Rights was recognized in our country in 1987, and the jurisdiction of the court was accepted in 1989[1].

 

2. REQUIREMENTS FOR INDIVIDUAL APPLICATION TO THE EUROPEAN COURT OF HUMAN RIGHTS

The process of individual application to the European Court of Human Rights is regulated in Article 34 of the European Convention on Human Rights. According to this;

“Any real person, non-governmental organization or group of persons who claim to be the victim of a violation of their rights recognized in this Convention or its protocols by one of the High Contracting Parties may apply to the Court. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

In this respect, each individual who is a victim of a violation of one of the rights guaranteed by the first 14 articles of the contract can make an individual application to the European Court of Human Rights. Victimization directly refers to the violation of a fundamental right of the applying individual. However, in some special and exceptional cases, the condition of being a direct victim may not be sought if there is potential victimization that is proven. The 2 prerequisites for the application are as follows:

  • The ECtHR has jurisdiction in terms of person, subject, place and time.
  • The admissibility conditions set out in Article 35 of the Convention have been met.

Jurisdiction of the European Court of Human Rights

Authority in terms of person refers to who can apply to the court and who can be appealed to the Court (obligation to be a party state),

Authority in terms of subject refers to a violation of one of the rights guaranteed by the contract and additional protocols (obligation to be limited to the rights regulated in the contract),

Authority in terms of location refers to the violation occurring within the jurisdiction of the contracting state,

Authority in terms of time refers to the violation occurring after becoming a party to the Convention and after the Convention has entered into force[2].

Admissibility Conditions

In order for the application to be admissible, in other words, for the court to start examining an application that comes before it on the merits the application must be made on time and it must be an application that has not been examined by the court before.

The period of individual application to the European Court of Human Rights is 6 months from the exhaustion of domestic remedies or the realization of the violation[3]. However, this period was reduced to 4 months with the amendment dated 01.02.2022. However, an existence of a constant violation of rights that is caused by the law is an exception. In this case, the application can be made as long as the law is in force.

Condition for Exhaustion of Domestic Remedies

After all the preconditions of individual application to the European Court of Human Rights have been met, the condition that domestic remedies have been exhausted is sought. The primary responsibility for the protection of fundamental rights and freedoms guaranteed by the European Convention on Human Rights and additional protocols rests with the states parties. For this reason, first of all, the applicant must have exhausted the necessary applications to the legal authorities of the country in which they are located. The last domestic remedy to be exhausted in our country is the Individual Application process to the Constitutional Court. The European Court of Human Rights considered individual application to the Constitutional Court as a domestic remedy that must be exhausted in many of its decisions. (Ex: Hasan Uzun vs. Turkey 2013)[4]

There are some exceptions to the requirement to exhaust domestic remedies. These exceptions are as follows;

  1. Absence of a domestic remedy to be exhausted (For example, if there is no appeal authority against a decision given by the Local Court)
  2. Ineffectiveness of domestic remedies (Akdivar vs. Turkey case is an example of this exception)[5]
  3. The existence of an established judicial jurisprudence,
  4. The fact that administrative practice, that is, the violation of the contract, which is a violation of rights, has turned into a routine,
  5. The ongoing legal process in domestic law being protracted,
  6. The prevention of the applicant from exhausting domestic remedies[6].

The reason for not exhausting domestic remedies must be due to the violation of one of the rights guaranteed by the European Convention on Human Rights. However, in such cases, the issue of whether the exception is appropriate, that is, whether the application conditions are met, is evaluated by the European Court of Human Rights.

 

3. EVALUATION OF INDIVIDUAL APPLICATION TO THE EUROPEAN COURT OF HUMAN RIGHTS

The individual application that fulfils the conditions is examined by the European Court of Human Rights on the merits. At this point, a fundamental evaluation is made, such as whether the fundamental rights and freedoms regulated by the European Convention on Human Rights and its annexed protocols have been violated, and whether the applicant has suffered as a result of the violation. As a result of the evaluation, decisions can be made by a total of 3 different boards, namely the Committee, the Chamber and the Grand Chamber.

  •  The Committee decides if the application can be decided by established jurisprudence. Decisions made by the Committee are final.
  • Any decision on the merits of the application can be made by the Chamber. The decisions of the Chamber are not final. Appeals against the decisions of the Chamber can be made within 3 months.
  • Applications seized by the Chamber are examined by the Grand Chamber.

 

4. EXECUTION OF THE DECISIONS OF THE EUROPEAN COURT OF HUMAN RIGHTS

The final decisions, which have been reviewed and finalized by the European Court of Human Rights are enforceable. It can be said that the individual application is concluded at this stage. Regarding the decision obtained as a result of the individual application, the country against which the application is made has to remedy the victimization with individual measures. The aim is to restore the situation of the applicant to the state prior to the violation with the individual measures. In addition, the country where the violation took place can bring some regulations to eliminate the possibility of future violations by applying general measures. Finally, the European Court of Human Rights may also specify a provision on how to remedy the victimization of the applicant[7].

This entire enforcement process is subject to certain controls. These inspections are regulated by the following rules:

*Committee of Ministers of the Council of Europe dated 10.05.2006, regulatory rules on the supervision of the execution of judgments of the European Court of Human Rights and friendly settlements.

**Document on the new working method, which is called 'double-lane auditing', combines the changes regarding the supervision of the execution of the judgments of the European Court of Human Rights dated 07.12.2010

***Supervision of the execution of the judgments of the European Court of Human Rights dated 30.03.2016, procedures and working methods in the human rights meetings of the Committee of Ministers[8]

As a result of these inspections, if it is determined that the state does not redress the grievance, that is, does not implement the final decision, the said state is removed from the membership of the Council of Europe.

 

5. CONCLUSION

As regulated in Article 34 of the European Convention on Human Rights, every individual who fulfils the admissibility conditions in Article 35 and who is a victim of a violation of the fundamental rights and freedoms protected by the Convention can make an individual application to the European Court of Human Rights. In particular, according to the report prepared by the European Court of Human Rights in 2009, Turkey is the third country with the highest number of applications. Although this application is subject to many conditions, there is still hope for individuals who are directly harmed because their fundamental rights and freedoms are violated.

 

Dicle Sezer

 

 

 

BIBLIOGRAPHY

(1) Avrupa İnsan Hakları Mahkemesi’ne Bireysel Başvuru Hakkı ve Mevzuat, Ankara Barosu İnsan Hakları Merkezi Yayınları, 2. Baskı, Yıl 2006, Syf 1-8,                                  

(2) Bilir, F,  Avrupa İnsan Hakları Mahkemesi’nin Yargılama Yetkisi ve “Ermeni Soykırımını”  İnkarı Suç Sayan Düzenleme, Selçuk Üniversitesi Hukuk Fakültesi Dergisi, Cilt 14, Sayı 2, Yıl 2006, Syf 310-321

(3) ANAYURT, Ömer: Avrupa İnsan Hakları Hukukunda Kişisel Başvuru Yolu, Seçkin Yayıncılık, Ankara, 2004, Syf 232-245

(4) Çelikyay, HS, İstanbul Üniversitesi Hukuk Fakültesi Mecmuası, 1. Baskı, Yıl 2015, Syf 29-31

(5) Kılınç, Ü, Yeditepe Üniversitesi Hukuk Fakültesi Dergisi, Cilt 17, Sayı 2, Yıl 2020, Syf 601-602 (Karar İçin Ayrıca Bkz : Akdıvar Ve Diğerleri versus Türkiye Davası, STRASBOURGT, Yıl : 01.04.1998, Bkz: https://hudoc.echr.coe.int/tur?i=001-58152)

(6) Doç.Dr.Bülent ALGAN, Ankara Üniversitesi Hukuk Fakültesi Açık Ders Notları, Yıl 2017, Syf 25-28

(7) DOĞAN, İlyas:Avrupa İnsan Hakları Sözleşmesi Hukuku, Astana Yayıncılık, Ankara, 2021, Syf 361-376,402

(8) Ozmen, M, Avrupa İnsan Hakları Mahkemesi’ne (AİHM) Bireysel Başvuru, AİHM Kararına Karşı Başvuru Yolları ve AİHM Kararlarının İcrası ile İlgili Pratik Bilgiler, Çankaya Üniversitesi Hukuk Fakültesi Dergisi, Cilt 36, Sayı 1, Yıl 2018, Syf 229-257

(9) 50 Years of Activity-The European Court of Human Rights Some Facts and Figures, Provisional Edition, April 2010, Pg 4-12

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