Complaint to the European Court of Human Rights (ECtHR)

Who and under what circumstances can lodge a complaint with the ECtHR

Any natural person, non-governmental organisation or group of individuals who considers himself to be the victim of a violation by any State Party of the rights recognised in the ECHR or its Protocols may lodge an individual complaint with the ECtHR. The rights and freedoms protected by the ECHR include the right to life, to a fair trial, to respect for private and family life, to freedom of expression and thought, to conscience and religion, and to the protection of property. The ECHR prohibits, inter alia, torture and other inhuman or degrading treatment or punishment, forced labour, arbitrary and unlawful detention and discrimination in the enjoyment of the rights and freedoms enshrined therein.

Complaints are always brought against a State Party that has violated such rights, and never against a natural person or against States that have not ratified the ECHR.

Complaints may initially be lodged in person or through a representative. Representation is only mandatory, unless otherwise decided, from the notification of the complaint to the requested counterparty. The representative must be a lawyer authorised to practise in a State Party, be resident in any of them and must adequately understand one of the official languages of the ECtHR (French or English), even if he or she cannot express himself or herself in it.

Accessibility to the ECtHR has been simplified to ensure that all individuals who obtain a decision issued by any State Party violating the rights contained in the ECHR can lodge a complaint. As a result, the procedure is free of charge and the applicant is not required to be a national of any State Party.

Similarly, the applicant may apply for free legal aid where he or she does not have sufficient resources to cover all or part of the costs. Such a request may be made only after the complaint has been lodged with the ECtHR, in particular after the requested State Party has submitted observations on the admissibility of the complaint or, where it does not submit such observations, after the expiry of the time limit for lodging the complaint. Legal aid may be granted to cover not only the fees of the representative lawyers, but also travel and subsistence expenses and other necessary expenses incurred by the applicant or the appointed representative lawyer.

Eligibility conditions

Complaints may be submitted to the ECtHR only in respect of violations of rights and prohibitions contained in the ECHR and provided that the State which has violated the ECHR has ratified it. In addition, the following requirements shall be met:

• Exhaustion of domestic remedies

  in the Portuguese legal system, the last instance of appeal will, as a rule, be the Supreme Court of Justice;

• Deadline for submission

  lodging the complaint within 4 months from the date of the final internal decision;

• Significant damage

  the existence of significant injury to the applicant resulting from the violation of his or her rights by the State Party.

• Consequence of the absence of conditions

  The absence of any of these conditions will lead to the complaint being dismissed as inadmissible by the ECtHR. The same shall apply to any complaint which is manifestly unfounded or abusive.

Furthermore, complaints may not be anonymous or identical to another case previously examined by the ECtHR or already submitted to any other international body, without the addition of new facts. Failure to comply with these rules will result in the case not being heard by the ECtHR.

Formal requirements of the complaint

• Structure Recommendations

  In addition to those requirements, it is also recommended that the text be organised by titles or chapters relating to ‘Facts’, ‘Explanation of alleged violations’ and ‘Information concerning the exhaustion of domestic remedies and compliance with the time-limit laid down in Article 35.º(1) [of the ECHR]’. The purpose of the complaint form is to be valid on its own, facilitating the decision of (in)admissibility. Therefore, even if it is allowed to attach an attached document, with a maximum of 20 pages, with the aim of complementing the factuality and reasoning described in the form, it must contain all the relevant information with regard to the complaint.

• Documents and Privacy

  Together with the form, all documents relevant to the proof of the denounced decisions (e.g. a copy of the decisions handed down by the national courts), the facts described, as well as the fact that the complainant has exhausted all available domestic means and has complied with the deadline required by the Convention should be included. Where the applicant is a legal person, documents must also be attached to show that the individual who lodged the complaint was qualified and had the necessary powers to do so. If the applicant does not wish his or her identity to be disclosed to the public, which will be the rule by virtue of the publicity of the file, he or she shall expressly state his or her reasons.

Procedure

Proceedings before the ECtHR go through two distinct stages: the examination of the admissibility of the complaint and the examination of its substance or merits.

Case-law of the ECtHR

By way of illustration of what has been said about the possible decisions of the ECtHR, there are now two judgments, resulting from complaints against the Portuguese State.

• Case Pretescu versus Portugal

  Judgment given on 03.12.2019

  Daniel Andrei Pretescu against prison conditions

  Daniel Andrei Pretescu, a Romanian national, filed a complaint against the Portuguese State for allegedly having served, in Portuguese prisons, an effective prison sentence in inhuman and degrading conditions, contrary to the provisions of Article 3.º of the ECHR.

  In summary, the applicant claimed that the cells in which he had been imprisoned were overcrowded, offered poor hygiene conditions, no heating system during the winter, and no privacy in the bathrooms. It also requested reasonable compensation, which, in relation to the non-material damage, amounted to EUR 15 000 (fifteen thousand euros).

  In turn, the Portuguese State clarified that the cells were all equipped with bathrooms, which included a washbasin, toilet, shower and access to hot water, being separated by a small wall. He also clarified that the defendant was recluse, at most, with 8 people (in the same cell), and that the fact that the cells were not equipped with air-conditioning systems was due to the lack of need in the face of the country's climate. After examining the complaint, the ECtHR, after leaving the recommendation to the Portuguese State to adopt general measures in order to guarantee prisoners detention conditions, as well as access to remedies that would prevent the continuation of an alleged violation of their rights, issued the following decision:

  “THE EXPOSED GROUNDS, BY SECTION, BY UNANIMITY:

  1. Rejects the request to close the case on the basis of the amicable settlement reached by the parties;
  2. declare the complaint admissible;
  3. Says that there was a violation of Article 3.º of the Convention during the period of 376 non-consecutive days, during which the applicant had, in the prison of the PJ of Lisbon, an individual space of less than 3 m²;
  4. Says that there was a violation of Article 3.º of the Convention during the period of 385 non-consecutive days in which the applicant had, in the prison of the PJ of Lisbon, an individual space between 3 and 4 m²;
  5. Says that there was a violation of Article 3.º of the Convention during the thirty-six-day period (between 13 July 2012 and 19 August 2012), during which, in the prison of the PJ of Lisbon, the applicant had an individual space of more than 4 m²;
  6. Says that there was a violation of Article 3.º of the Convention during the eighteen-day period (between 17 October 2014 and 5 November 2014), during which, in the prison of Pinheiro da Cruz, the applicant had an individual space of less than 3 m²;

  7. 7. Says

     that the requested State must pay to the claimant, within three months of the date on which the judgment becomes final in accordance with Article 44.º(2) of the Convention, the sum of EUR 15 000 (EUR 15 000), plus any amount that may be due by way of tax, for non-material damage;
     from the date of expiry of that period until actual payment, this amount shall be increased by a simple interest rate equal to the interest rate on the marginal lending facility on the part of the European Central Bank during that period, increased by three percentage points;
  8. rejects the claim for reasonable compensation in respect of the excess part.’
• Case Welsh and Silva Canha versus Portugal

  Judgment given on 30.08.2022

  Eduardo Welsh and Gil Silva Canha for freedom of expression

  Eduardo Pedro Welsh and Gil da Silva Canha, both Portuguese citizens, lodged a complaint against the Portuguese State with the ECtHR for having violated their right to freedom of expression, enshrined in Article 10.º of the ECHR.

  Briefly, the applicants, journalists from a local Madeiran satirical newspaper, Garajau, published 3 articles about a criminal investigation that was taking place, at the time, on the management of the Port of Madeira. These were based on other news already published by other national newspapers with more popularity, namely Diário de Notícias and Sol newspaper.

  However, L.S., a well-known businessman and member of the board of directors of the private company that managed the Port of Madeira, brought an action before the Tribunal Judicial da Comarca da Madeira (District Court, Madeira), claiming that the statements made therein seriously affected his honour and reputation. The court of 1ª instance therefore decided to award compensation of EUR 30,000 (thirty thousand euros) for the non-material damage suffered by L.S., to be paid, of course, by Welsh and Silva Canha.

  By appeal to the Lisbon Court of Appeal, the compensation was reduced to €15,000 (fifteen thousand euros), as only two of the three articles published were considered to have caused damage to L.S.'s honour and reputation.

  Since it was merely satire in a local newspaper created for that purpose, the journalists complained to the ECtHR, claiming, in summary, that, despite the fact that the decision of the national courts was based on the law and pursued a legitimate aim, such a violation of freedom of expression would not be necessary in a democratic society. On the contrary, the Portuguese State argued that such interference with freedom of expression was not only justified, but was necessary to protect the honour and reputation of the other party.

  Reasonable redress request from applicants:

  • EUR 15 000 (fifteen thousand euros) in respect of material damage, corresponding to the compensation paid to L.S. in compliance with the decision of the national courts;
  • EUR 3 238,50 (three thousand two hundred and thirty-eight euros and fifty cents) for the costs of proceedings before national courts;
  • EUR 3 000 (three thousand euros) in lawyer’s fees relating to the proceedings before the ECtHR.

  The ECtHR, for its part, has addressed the need for such a restriction in a democratic society. It concluded that L.S. is considered to be a public figure in Madeira, so that he voluntarily exposed himself to public scrutiny as regards his profession, the articles published are considered to be of public interest, not relating to his private life, but merely to his professional life, and the statements were based on other newspapers of greater national renown, which were referred to indirectly in the articles, resulting in the good faith of the respective authors. Added to all this would be the fact that the local newspaper does not have a large number of readers, reducing itself to 500 copies distributed in Madeira, and the fact that it is, by its very nature, a satire newspaper. The ECtHR has therefore made the following decision:

  “THE GROUNDS OF THE THOSE, THE COMMITTEE, BY UNANIMITY:

  1. declare the complaint admissible;
  2. Concludes that there has been a violation of Article 10.º of the Convention;
  3. Concludes that the finding of an infringement constitutes, in itself, fair satisfaction for any non-material damage suffered by the applicants;

  4. 4. Concludes:

     that the requested State shall jointly pay the following amounts to the applicants within three months: (i) €15 000 (fifteen thousand euros), plus any amount that may be due by way of tax, for material damage; (ii) €3 238.50 (three thousand two hundred and thirty-eight euros and fifty cents), plus any amount that may be due by way of tax, for costs and expenses;
     from the date of expiry of that three-month period until actual payment, that amount shall be increased by a simple interest rate equal to the interest rate on the marginal lending facility of the European Central Bank during that period, increased by three percentage points;
  5. rejects the claim for reasonable compensation in respect of the excess part.’